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Full text of "The United States and German Jewish persecutions--precedents for popular and governmental action"

B'nai B'rith Executive Committee 
Electric Buiiding; Cincinnati, Ohio 

1934 







THE UNITED STATES AND GERMAN 
JEWISH PERSECUTIONS- 
PRECEDENTS FOR POPULAR AND 
GOVERNMENTAL ACTION 



By 



MAX J. KOHLER, M. A., L.L.B., D.H.L. 



FIFTH EDITION 






B'nai B'rith Executive Committee 
Electric Building, Cincinnati, Ohio 

1934 



' 



CONTENTS 



I. Precedents for Popular Protests 



Page 
. 3 



II. American Governmental Intercession on behalf 

of the Jews 31 

III. The Bernheim Upper Silesian Petition before 

the Council of the League of Nations ... 49 

\ppendix I. Petition of Franz Bernheim to the Coun- 
cil of the League of Nations 74 

\ppendix II. Resolution Introduced by Senator Tydings 

in the U. S. Senate, January 24, 1934 .... 79 



nnrary 
Uni 1 sily of 1 
Austin, Texas 

THE UNITED STATES AND GERMAN JEWISH PERSECUTIONS 
Precedents for Popular and Governmental Action 

Paper Submitted to the Jewish Academy of Arts and Sciences, June 1, 1933 



By Max J. Koiiler, M. A., LL. B„ D. H. L. 
I. Precedents for Popular Protests 



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4 



In a very recently issued work by Prof. C. K. Webster and Sydney 
Herbert on "The League of Nations in Theory and Practice", the chap- 
ter on "Minorities" (p. 205) contains as a head-note a striking letter 
written by Lord Palmerston, then Prime Minister of England to Lord 
Clarendon December 2, 1859, reading as follows: 

"The truth is, there is a passion in the human heart stronger than 
the desire to be free from injustice and wrong, and that is the desire 
to inflict injustice and wrong upon others, and men resent more keenly 
an attempt to prevent them from oppressing other people than they do 
the oppression from which they themselves suffer". 

This truism, (which advance in civilization should have modified) has 
particular application today, however, to the German Government under 
Hitler and its emissaries and allies, in their efforts not merely to prevent 
international action to check their barbarism towards German Jewry, but 
even to prevent publication at home and abroad, of the facts regarding 
their reprehensible conduct and comments concerning the same. We 
have, accordingly, witnessed incredible and heretofore unheard of attacks 
on the life, liberty, property and pursuits of German Jews, avowedly in 
order to hold them as hostages and victims to prevent publication of so- 
called "atrocity charges" by third parties abroad. We have witnessed 
German governmental efforts, not merely successful in muzzling their 
own press, but also aimed to prevent foreign correspondents and ordi- 
*v nary letter and wire correspondence from communicating relevant facts 
<^I abroad, accompanied by threadbare false governmental denials of un- 
\^%Questionable facts. We have noted German governmental protests to 
"-^England for permitting public discussion in Parliament of her inhuman 
and brutal doings, which that great people seems to have ignored with 
silent contempt. We have read in our country, also, German officially 
«; inspired and allied personal statements that her treatment of her Jews 
52 is "an internal affair," which other governments and individuals have 
<& no right to concern themselves with, and even the Steuben Society of 
ca America has not merely belittled and misrepresented the actual occur- 
z rences, but protested at Americans taking cognizance of them, either 
JC personally or officially. These extraordinary contentions have been 
heard so seldom in civilized countries in recent years that they have 
not been analyzed latterly, and it is my purpose to consider them herein, 
first, as concerns popular protests, next, as to governmental representa- 
tions. These expressions of external opinion are all the more important, 
because it is only by trying the German Government before the court of 



W 



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464440 



world opinion, thai we can hope to check these outrages, In these days 
of the newspaper, the telegraph, the telephone, the cable and the wireless 

il is nol merely true that "die Weltgeschichte ist das Weltgericht" but 
present-day judgment has itself become a determining force. 

Some years ago, in 1913, Luigi Luzzatti, distinguished Italian states- 
man, publicist and historian, organized an "International Committee for 
the Defense of Religious Freedom" in the interest of the persecuted Jews 
Of Rumania, and among others who promptly joined this group were Vis- 
conti Venosta, Clemenceau, Anatole France, Ribot, Jaures, Theodore 
Roosevelt, James Bryce, Lord Rothschild, Bernard Shaw, and Lord Bal- 
four. The noble appeal they sent to Premier Bratianu of Rumania is re- 
printed in Luzzatti's "God in Freedom" (p. 477 et seq.), and contains the 
following passages : 

"May the conscience of the civilized world not be slow to awake and 
affirm the solidarity of human peoples. For the honor of the 20th cen- 
tury, may the citizens of every country, jealous of their rights, rise to 
defend the victims of religious and social intolerance. The injustice 
cannot long resist the stimulus of civilized opinion. The formation of 
the present committee is explained and justified by the idea that ques- 
tions of general human interest can and ought to be the subject of inter- 
national action, outside of all the distinctions of race or nationality". 
When Bratianu protested that the Jewish question in Rumania was "an 
internal question/' with which foreigners had no right to concern them- 
selves, Luzzatti answered (p. 484) : 

_ "This did not prevent men of all countries, friends of freedom and 
justice, from bringing influence to bear on the administrators of the 
Rumanian state, and with them to bring about the triumph of these 
principles. Every time a question of justice and liberty is presented to 
the conscience of the civilized world, there are always found, both in the 
country itself and beyond its frontiers, men who have a passion for the 
right, and unite to enlighten public opinion, to act on behalf of the 
oppressed. In doing this, one does not violate the sovereignty of a state 
or impede its freedom of action". 

Luzzatti, remarkably erudite scholar, as well as statesman, proceeded 
to quote some remarkably fine sentiments on this question, written by the 
distinguished American Unitarian minister and scholar, William E. Chan- 
mng, which America herself has quite generally forgotten, though they 
are the fullest and ablest treatment of this question I know of. In (man- 
ning's letter to Jonathan Phillips of 1839, he wrote (I somewhat enlarge 
Luzzatti's quotations) :* b 

"I maintain that there is a moral interference with our fellow- 
creatures at home and abroad, not only to be asserted as a right, but 
binding as a duty ... I maintain the right of acting on foreign countries 
by moral means for moral ends. Suppose that there were in contact 
with us a foreign state, which should ordain by law that every child born 
with black hair or a darkly-shaded face should be put to death ; and 



* Channing's "Works, New and Complete Edition" of 1875, (p. 7H4 et seq). 



suppose that every sixth child should be slaughtered by (his barbarous 
decree. Or take the case of a community at our door, which should re- 
store the old gladiatorial shows, and suppose that a large part of the 
population should perish in these execrable games. Who of us would 
feel himself bound to hold his peace because these atrocities were com- 
mitted beyond our boundaries ? Who would say that the tortures of the 
slain were no concern of ours, because not of our own parish or coun- 
try ? Is humanity a local feeling ? Does sympathy stop at a frontier t 
Does the heart shrink and harden as it approximates an imaginary line 
on the earth's surface? Is moral indignation moved only by crimes 
perpetrated under our own eyes? Has duty no work to do beyond our 
native land? Does a man cease to be a brother by living in another 
state tf , Is liberty nothing to us, if cloven down at a little distance? 
Christianity teaches different lessons. Its spirit is unconfined love. One 
of its grandest truths is human brotherhood. Under its impulses Chris- 
tians send the preacher of the cross to distant countries, to war with 
deep-rooted institutions. The spiritual ties which bind all men together 
were not woven by human policy, nor can statesmen sunder them . . . 
The position is false, that nation has no right to interfere morally with 
nations. Every community is responsible to other communities for its 
laws, habits, character; not responsible in the sense of being liable to 
physical punishment and force, but in the sense of just exposure to re- 
probation and scorn; and this moral control communities are bound to 
exercise over each other, and must exercise over each other, and exer- 
cise it more and more in proportion to the spread of intelligence and 
civilisation. The world is governed much more by opinion than by 
laws. It is not the judgment of courts, but the moral judgment of indi- 
viduals and masses of men, which is the chief wall of defense round 
property and life. With the progress of society, this power of opinion 
is taking the place of arms. Rulers are more and more anxious to stand 
acquitted before their peers and the human race. National honor, once 
in the keeping of the soldier, is understood more and more to rest on the 
character of nations . . . I claim the right of pleading the cause of the 
oppressed, whether he suffers in this country or another. I utterly deny 
that people can screen themselves behind their nationality from the 
moral judgment of the world. Because they form themselves into a 
state, and forbid within their bounds a single voice to rise in behalf of 
the injured, because they crush the weak under the forms of law, do 
they hereby put a seal on the lips of foreigners? Do they disarm the 
moral sentiment of other states? Is this among the rights of sover- 
eignty, that a people, however criminal, shall stand unreproved? In 
consequence of the increasing intercourse and intelligence of modern 
hmes, there is now erected in the civilised world a grand moral tribunal, 
before which all communities stand and must be judged. As yet, its 
authority is feeble compared with what it is to be, but still strong enough 
to lay restraint, to inspire fear. Before this slave-holding communities 
are arraigned, and must answer. The friends of justice, liberty, and 
humanity accuse them of grievous wrongs. It is vain to talk of the pre- 
scription of two hundred years. Within this space of time great changes 
have taken place in the code by which the commonwealth of nations 
passes sentence. The doctrine of human rights has been expounded. 



rhe right oJ the laborer to wages, the right of every innocent man to 
his own person, the right of all to equity before the laws, — these are no 
longer abstractions of speculative visionaries, no longer innovations, but 
the established rights of humanity. Before the tribunal of the civilized 
world, and the higher tribunal of Christianity and of God, the slave- 
holder has to answer for stripping his brother of these recognized priv- 
ileges and immunities of a man . . . You and I are nothing, but as we 
represent those great principles of justice and charity with which the 
human heart is everywhere beginning to beat ... A few straggling in- 
dividuals, given to a bad course, might be overlooked for their insig- 
nificance. But when a community openly, by statutes, by arms, adopts 
and upholds an enormous wrong, then good men, through the earth, are 
bound to unite against it in stern, solemn remonstrance. The greater 
the force combined to support an evil, the greater the force needed for 
its subversion. Crime is comparatively weak until it embodies and 
'sanctifies' itself in institutions . . . This evil rests on associated strength, 
on the prostitution of the powers of the state. Regarded as an institu- 
tion which combined millions uphold, it seems to have a strength, a per- 
manence, against which individual power can avail nothing ; and hence, 
it may be said, strength is to be sought in associations. The argument 
does not satisfy me; for I believe that, to produce moral changes of 
judgment and feeling, the individual, in the long run, is stronger than 
combinations . . . Multitudes, even now, know no higher authority than 
human government. They think that a number of men, perhaps little 
honored as individuals for intelligence and virtue, are yet competent, 
when collected into a legislature, to create right and wrong. The most 
immoral institutions thus gain a sanctity from law. To the laws zue are 
indeed bound to submit, in the sense of abstaining from physical resist- 
ance; but we are under no obligation to bow to them our moral judg- 
ment, our free thoughts, our free speech. What! Is conscience to 
stoop from its supremacy, and to become an echo of the human magis- 
trate? Is the law, written by God's finger on the heart, placed at the 
mercy of interested statesmen? Is it not one of the chief marks of social 
progress that men are coming to recognize immutable principles, to un- 
derstand the independence of truth and duty on human will, on the sov- 
ereignty of the state, whether lodged in one or many hands ? . . . We ex- 
pose, as we can, the crimes and cruelties of other States, and we ask of 
other States the same freedom towards our own. If, in the opinion of 
the civilized world, or of any portion of it, we of this Commonwealth are 
robbing men of their dearest rights, and treading them in the dust, let 
the wrong be proclaimed far and wide. If good men anywhere believe 
that here the weak are at the mercy of the strong, and the poor are de- 
nied the protection of the laws, then let them make every State of the 
Union ring with indignant rebuke ... If the oppressed are muzzled 
here, let the lips of the free elsewhere give voice to their wrongs". 
Similarly, John Quincy Adams in his "Letters of Publicola", pub- 
lished in 1791 in answer to Thomas Paine's defense of the French Revo- 
lution in the latter's "Rights of Man", said : 

"This principle, that a whole nation has a right to do whatever it 
pleases, cannot in any sense whatever be admitted as true. The eternal 



1 



and immutable laws of justice and of morality are paramount to all 
htiman legislation. ... If, therefore, a majority thus constituted are 
■ bound by no law, human or divine, and have no other rule but their 
sovereign will and pleasure to direct them, what possible security can 
any citizen of the nation have for the protection of his unalienable 
rights? The principles of liberty must still be the sport of arbitrary 
power, and the hideous form of despotism must lay aside the diadem 
and the scepter only to assume the party-colored garments of de- 
mocracy." (W. C. Ford's "Writings of John Quincy Adams", I 65 
etseq. at 70-71). 
Probably the most striking incident in our Government's diplomatic 
history was our public expression of sympathy for Louis Kossuth, the 
Hungarian revolutionist. President Taylor had sent A. Dudley Mann as 
a secret agent soon after the revolt of 1848, to Hungary, to study the situa- 
tion, with a view to our promptly recognizing the independence of Flun- 
gary, if the events justified it, but with Russia's assistance, Austria put 
down the revolt, and Kossuth and other Hungarian patriots fled to Tur- 
key, whereupon Austria and Russia demanded their surrender. In re- 
porting his course, the President in his annual message of Dec. 1849 to 
Congress, stated : "I thought it my duty, in accordance with the general 
sentiment of the American people, to stand prepared, upon the contingency 
of the establishment by her of a' permanent government, to be the first to 
welcome Hungary into the family of nations". (5 Richardson's "Mes- 
sages" 12). Chevalier Hiilsemann, the Austrian charge in Washington, 
thereupon sent a protest to the State Department. Even before the Pres- 
ident's message was penned, Daniel Webster, then a U. S. Senator from 
Massachusetts, delivered an address in Boston Nov. 7th, 1849, in the 
course of which he said : 

"We have all had our sympathies enlisted in the Hungarian effort 
for liberty. We have all wept at its failure. Despotic power from 
abroad intervened to suppress the hope of free government in Hungary 
. . . Gentlemen, there is something on earth greater than arbitrary or 
despotic power, and that is the aroused indignation of the civilised 
world. If the Emperor of Russia shall so violate international law as 
to seize these Hungarians and execute them, he will stand as a criminal 
factor in the view of the public law of the world. The whole world 
will be the tribunal to try him, and he must abide its judgment" . 
Soon thereafter, Webster became Secretary of State under President 
Fillmore, and as such he answered protests from Hiilsemann in his famous 
letter of Dec. 21st, 1850, of which John W. Foster, former Secretary of 
State of the United States, said, in his "A Century of American Diplo- 
macy" (p. 331) : "Probably no paper emanating from the State Depart- 
ment ever met with a more widespread popular approval in America." 
Edward Everett had participated in the draftsmanship. 

In the course of this letter, Webster wrote (Works of Daniel Web- 
ster, 6 vol. edition of 1853 Vol. VI 491 et seq.) : 

"This department has on former occasions, informed the ministers 
of foreign powers that a communication from the President to either 
house of Congress is regarded as a domestic communication, of which, 
ordinarily no foreign state has cognizance . . . The government and peo- 



pie of the United Shales, like other intelligent governments and com- 
munities, lake a lively interest in the movements and events of this re- 
markable age, in whatever part of the zvorld they may be exhibited . . . 
With respect to the communication of Mr. Mann's instructions to the 
Senate, and the language in which they are couched, it has already been 
said, and Mr. Hulsemann must feel the justice of the remark, that these 
are domestic affairs, in reference to which the government of the United 
States cannot admit the slightest responsibility to the government of his 
Imperial Majesty . . . While performing with strict and exact fidelity, all 
their neutral duties, nothing will deter either the government or the 
people of the United States from- exercising at their own discretion, the 
rights belonging to them as an independent nation, and of forming and 
expressing their own opinions, freely and at all times, upon the great 
political events which may transpire among the civilised nations of the 
earth. Their own institutions stand upon the broadest principles of civil 
liberty, and believing those principles and the fundamental laws in which 
they are embodied to be eminently favorable to the prosperity of states, 
to be, in fact, the only principles of government, which meet the de- 
mands of the present enlightened age, the President has perceived with 
great satisfaction, that in the constitution recently introduced into the 
Austrian empire, many of these great principles are recognized and 
applied". 

Our Government also instructed our Minister at Constantinople to in- 
tercede with the Sultan for the relief of Kossuth and his companions, and 
Congress passed a resolution March 3rd, 1851, reciting: 

"Whereas the people of the United States sincerely sympathise -with 
the Hungarian exiles, Kossuth, and his associates . . . and whereas, if it 
be the wish of these exiles to emigrate to the United States, and the will 
of the Sultan to permit them to leave his dominions, therefore . . . 

The President of the United States be and he hereby is requested to 
authorise the employment of some one of the public vessels zvhich may 
be now cruising in the Mediterranean, to receive and convey to the 
United States the said Louis Kossuth and his associates in captivity". 

When Kossuth arrived in the United States, Congress welcomed him 
by joint resolution, he was introduced by committees to both Houses, and 
presented by the Secretary of State to the President. Numerous cities 
extended public welcomes to him, the proceedings of which were pub- 
lished. A public dinner was given in his honor January 7th, 1852, which 
Webster and other members of the Cabinet attended, and Webster deliv- 
ered an address, which was again made the subject of an Austrian official 
protest, which described it.as "a revolutionary address, in which he openly 
held out encouragement to Hungary, spurring her on to a new rebellion, 
and formally proposed a toast for the speedy emancipation of that king- 
dom". ("Writings and Speeches of Daniel Webster", in 18 volumes, 
1903, Vol. 13, p. 452 et seq. and Vol. 14, pp. 501-2). In the course of his 
answer, an official dispatch to our representative in Vienna, Secretary 
Webster wrote (Idem p. 503) : 

"The Chevalier Hulsemann, it appears, has yet to learn that no for- 
eign government or its representative can take just offense at anything 

8 



I 



which an officer of this Government may say in his private capacity. 
Official communications only are to be regarded as indicating the senti- 
ments and views of the Government of the United States. If those com- 
munications are friendly in their character, the foreign government has 
no right or reason to infer that there is any insincerity in them, or to 
point to other matters as showing the real sentiments of the Govern- 
ment".* 

In an able article on "Propaganda" by Henry Wickham Steed, the dis- 
tinguished journalist and authority on German history, in the "Encyclo- 
pedia Britannica" (14 Ed.) Vol. 18, p. 581 (et seq.), he says of Propa- 
ganda : 

"The most notable instance is the injunction of the Founder of 
Christianity to the disciples — 'Go ye unto all the world, and preach 
the gospel to every creature' (Mark XVI 15). Obeyed by the early 
Christians, this injunction was presently reflected in the official style 
of the committee of cardinals of the Roman Church in charge of for- 
eign missions 'Congregatio propaganda fide . It is also' held to warrant 
the activities of non-Catholic Christian missionary societies". 
He adds : 

"Before 1914 Germany alone among the great countries of the world 
carried it (official propaganda) on systematically. While other coun- 
tries and other Governments engaged from time to time in official propa- 
gandist campaigns for definite objects, German propaganda was con- 
tinued widespread. It was carried on chiefly by the Press Bureau of 
the German Foreign Office among the representatives of foreign news- 
papers resident in Berlin; by foreign press bureaus and telegraphic 
agencies affiliated to the German press bureau and to the German official 
telegraph agency; by the staffs of German embassies and legations 
abroad, and by the head office of foreign branches of German banks 
and shipping companies". 

To enlarge on Mr. Steed's statement, it should be remembered that 
Germany, even since the war, has been most given to propaganda against 
the conduct of foreign nations. Even as to the matter of international 
protection of minorities residing in other states, she has been most vehe- 
ment of all nations in the press, from the platform and by appeals to the 
League of Nations. She has been the only great power that brought vio- 
lation of minority protective arrangements before the World Court, and 
that as against Poland in invoking the Polish minorities treaty. Even 
now, Hitler is so lacking in logic and a sense of humor that he continues 
to protest against such Polish action against Germany in the face of his 
own anti-Jewish program. It depends, of course, upon the question 
"whose ox is gored !" As to literature on the history of propaganda, Ger- 
many's seems larger than any other country's, including as it does, such 
works as Haas' "Die Propaganda im Ausland" (1916) ; Edgar Stern- 
Rubarth's "Die Propaganda als Politisches Instrument" (1921), and 
Gerhard Schultzc-Pfaelzer's "Propaganda Agitation Reklam^' (1923). 
The literature on the subject in English is also growing, and includes A. 



* See also Fuess' "Daniel Webster" II 249-56, and Edward von Wertheimer: 
Kossuth in Amerika — 1851-1852" in "Preussische Jahrbucher Vol. 199 pp. 237-281. 



"Ludwig 



Lawrence Lowell's ''Public Opinion in War and Peace" ; Bryce's "Mod- 
ern Democracies" \ especially chapters 15 and 46; Higham's "Looking 
Forward: Mass Education through Publicity" (1920) ; Bertrand Russell's 
"Free Thought and Official Propaganda" (1922) ; Norman Angell's "The 
Unseen Assassins" ( 1932) ; Odegard's "The American Public Mind," and 
last but not least, the work of F. E. Lumley : "The Propaganda Menace 1 " 
just issued (1933). The last-cited work contains separate chapters on 
"Propaganda and Politics", "Propaganda and War", "Propaganda and 
Patriotism", "Propaganda and Religion" and "Propaganda and Race". 
The last-named chapter begins with a quotation of George Moore's state- 
ment, "After all, there is but one race, humanity", and it pays its respect 
to the "Nordic" and the "Aryan" theories of race superiority, as well as 
to "Teutonism". He distinguishes between the more general use of the 
term "Propaganda", limiting it to "pernicious", and calls good propaganda 
"education". I shall use the term in its more general acceptation. An 
illustration of propaganda to stir up sentiment in favor of international 
reform was afforded as late as the 30th of May, 1933, before the League 
of Nation's Council, when Count Raczynski of Poland said in discussing 
the Bernheim position regarding Germany's violation of the Upper Sile- 
sian treaty : 

"Formally, the Council can deal only with the Jews of Upper Sile- 
sia" (referring to the fact that the petition before it raised only the 
Upper Silesian issue) , "but every member of the Council has the moral 
right to appeal urgently to the German government to insure equal 
treatment for all the Jews of Germany. For example a Jewish minority 
in Germany legally protected on a small portion of the territory of the 
Reich must lead to the conclusion that the present status of minorities 
is defective. At the next Assembly the question must be studied thor- 
oughly, since it is one which the conscience of every nation is required 
to face". 

(See a fuller report of this argument infra p. 58) . 

One of the earliest best-organized efforts at propaganda reaching 
into foreign lands was that of the English abolitionists against the slave 
trade at and around the time of the Congress of Vienna in 1814, partici- 
pated in by Clarkson, Wilberforce, Grenville Sharp and Zachary Ma- 
caulay, and carried into the House of Commons by David Hartly as early 
as 1776. (See C. K. Webster's "Foreign Policy of Castlereagh" I, 412- 
424; 454-462). Quakers soon carried the movement into America, and 
without the same, neither the slave trade nor slavery would yet have been 
abolished. Leaders in the American movement against slavery, it will be 
remembered, were Garrison, Wendell Phillips, Lundy, Love joy, Sumner, 
Channing, John Brown and Harriet Beecher Stowe. Nor were Jews si- 
lent on the slavery question. We find vigorous denunciations of slavery 
emanating from Cremieux, David Einhorn, Michael Heilprin, Moses 
Mielziner and Gustav Gottheil, as against pro-slavery utterances of Judah 
P. Benjamin, David Yulee and Morris Raphall, while Berthold Auerbach, 
on the other hand, held the slave-dealer up to contempt in his graphic 
novel "Das Landhaus am Rhein", and Heinrich Heine declared that he 
would not emigrate to America, as that was a country which sanctioned 
human slavery ! England's able history is graphically expounded in Sir 

10 




Thomas Erskine May's "Constitutional History of England, 1760-1860" 
in his two chapters on "The Press and Liberty of Opinion" pp. 102-244 
of Vol. II of the American edition of 1886. 

Had it not been for public agitation in and out of legislative chambers 
in the United States and abroad, Greece would scarcely have achieved her 
independence from Turkey, or Cuba in our own day from Spanish ty- 
ranny. Irish independence is another similar theme. 

History is full of propaganda that led to warfare even on occasion, on 
account of religious persecutions throughout the centuries, notably in 
England under Elizabeth, Cromwell and Charles II on behalf of foreign 
Protestants, as is well pointed out in Prof. Lingelbach's "Doctrine and 
Practice of Intervention." Stowell's "Intervention" (p. 84) instances 
English diplomatic efforts, following popular agitation, to protect Prot- 
estants in Tuscany from persecution in 1855. 

For convenience, I shall deal with non- Jewish precedents first, but I 
reserve for consideration later in this paper, the actual intervention by 
England and France in Syria in 1860, in the Mt. Lebanon region, follow- 
ing debates in Parliament and popular agitation in England and France. 
Still more impressive and notorious was the agitation in England in 1876 
and thereafter on the part of statesmen of the Liberal party under Wm. 
E. Gladstone's leadership against Turkey, commonly known as the "Bul- 
garian Atrocities". They forced the hands of Disraeli and the Tories to 
desist from intended support of Turkey as against Russia in the Russian- 
Turkish War of 1876-7, ostensibly caused by Turkish atrocities against 
Bulgarian Christians. Detailed accounts of the incidents involved are to 
be found in Morley's "Life of Gladstone" (Vol. II, pp. 548-571,) in the 
chapter entitled "Eastern Question Once More 1876-1877", where ref- 
erence is to be found to Gladstone's famous pamphlet, "Bulgarian Horrors 
and the Question of the East", published in 1876. The Tory side is con- 
sidered in the Buckle-Mony penny biography of Benjamin Disraeli, (Vol. 
VI, pp. 1-369) , particularly in Chapter II (pp. 41-73) , entitled "The Bul- 
garian Atrocities". James Bryce won his spurs in public life at this period 
in this same cause, (H. A. L. Fisher's biography of Bryce 1, 166 et seq. ; 
Bryce's "Modern Democracies", II p. 378), and additional anti-Turkish 
propaganda was furnished by Montstuart E. Grant Duff's published lec- 
ture "The Eastern Question" (1876) and by Edward A. Freeman's pam- 
phlet "The Turks in Europe" (1877). Despite Disraeli's triumph over 
Russia in 1878 at the Congress of Berlin, the defeat of his party in 1880 
at Gladstone's hands has been traced back to these Bulgarian "atrocities". 

The persecution of the Armenians by Turkey also led to much public 
agitation during a long series of years, beginning in 1895, as well as gov- 
ernmental representations, both in England and the United States. One 
contribution to this propaganda is Arnold J. Toynbee's "Armenian Atro- 
cities — The Murder of a Nation", with a famous speech by Lord Bryce 
in the House of Lords in 1915. The official report of American govern- 
mental representations has been published very recently in the belated vol- 
ume of "U. S. Foreign Relations for 1915 Supplement" pp. 979-990, en- 
titled "Efforts in Behalf of Armenians and Jews in Turkey". The fact 
that the Great War was pending, and that the Armenians attempted to aid 
the enemies of the Government that oppressed them, did not prevent Sec- 

11 



retaries of State Bryan and Lansing and Acting Secretary Polk, together 
with Ambassador Morgenthau, from making official representations in 
their behalf, at times in conjunction with Italy, Holland and Germany. 
On April 27th, 1915, Secretary Bryan cabled to Ambassador Morgenthau : 

"Russian Ambassador has brought to our attention an appeal made 
by the Catholics of the Armenian Church that this Government use its 
good offices with the Turkish Government to prevent the massacre of 
non-combatant Armenians in Turkish territory. You will please bring 
the matter to the attention of the Government, urging upon it the use 
of effective means for the protection of Armenians from violence at the 
hands of those of other religions". 

Again on April 29th, 1915, the Secretary of State directed our Ambas- 
sador at Constantinople to "urge Turkish Government to protect both 
Armenians and Zionists". On May 2nd, 1915, Ambassador Morgenthau 
advised the Secretary that the 

"Italian Ambassador, who had received instructions similar to mine, 
joined me in making strong representations to the Sublime Porte yes- 
terday, according to your 626 . . . Both Austrian and German Ambas- 
sadors hesitate to interfere in the internal affairs of their ally, but I 
have persuaded Austrian Ambassador that massacres of non-Moslem 
seriously injure them as well as Turkish Government, and Austrian 
Ambassador has communicated this to his Government. We have 
succeeded in suspending movement against Zionists". 

Under date of June 18th, 1915, our Ambassador reported that he had 
delivered a message from the Allies to the Grand Vizier, stating that he 
would be held personally responsible for further massacres, and Mr. 
Morgenthau continued that the Grand Vizier 

"expressed regret at being held personally responsible, and resentment 
at attempted interference by foreign governments with the sovereign 
rights of the Turkish Government over their Armenian subjects. My 
unofficial efforts, though frequent and persistent, have resulted in oc- 
casionally mitigating the hardships, but have failed to dissuade them 
(from) their course, which they attempted to justify on the grounds of 
military necessity". 

On August 12th, Mr. Morgenthau reported that the German Ambas- 
sador had made a strong protest to the Sublime Porte. 

On September 3rd, 1915, he reported (p. 988) that "the Minister of 
War has promised to permit departure of such Armenians to the United 
States whose emigration I vouch for as bona fide", but Acting Secretary 
Polk answered, on September 22nd, "that difficulties in the way of whole- 
sale emigration of Armenians are unsurmountable", but suggested raising 
funds for relief, including repatriation or assisting emigration. 

On October 4th, 1915 (p. 988) Secretary Lansing cabled that re- 
ports "have aroused a general and intense feeling of indignation among 
the American people. You are instructed to continue to use your good 
offices for the amelioration of the condition of the Armenians and to 
prevent the continuation of the persecution of the Armenians, inform- 
ing Turkish Government that this persecution is destroying the feelings 

12 



University "• ■ 
Austin, Texar 

of good will which tlic people of the United States have held towards 
Turkey". 

On October 6th, 1915, Secretary Lansing wired : 
"Can you secure permission to leave Turkey for Armenians whose 
relatives in America will pay for expense passage?" 
and Ambassador Morgenthau cabled back on Oct. 9th that the "Sublime 
Porte will consider applications for emigration to the United States". 

On October 12th, Minister Van Dyke cabled that "Netherlands' minis- 
ter at Constantinople was instructed to confer with U. S. Ambassador in 
support of efforts to prevent Armenian atrocities". 

On October 8th, 1915 the German Ambassador here forwarded to our 
Secretary of State a copy of a remarkable communication delivered by the 
German Ambassador at Constantinople to the Turkish minister of Foreign 
Affairs, which contained the following passage : 

"German Embassy is constrained to remonstrate once more upon 
those horrible deeds and to decline any responsibility for the conse- 
quences they may involve. It finds itself under the necessity of drawing 
the attention of the Ottoman Government to that point all the more as 
public opinion is already inclined to believe that Germany as a friendly 
power allied to Turkey may have approved or even instigated their acts 
of violence." 



Perhaps the earliest international movement in aid of persecuted Jews 
was that on behalf of the Jews of Bohemia, whose expulsion Empress 
Maria Theresa ordered in 1744. England and Holland were joined in that 
movement by Venice, Saxony, Mayence, Brunswick, Poland, Turkey and 
the Pope, but it can be more conveniently considered hereinafter, under 
governmental representations and action. 

The agitation over the Damascus blood accusations of 1840 was world- 
wide, our own country's course being only incidental. The "Jewish Ency- 
clopedia" article on the "Damascus Affair" contains a valuable bibliogra- 
phy, and Sir Moses and Lady Montefiore's "Diaries" throw much addi- 
tional light on the same. Latterly, the same was supplemented materially 
by an interesting article in the Frankfurter "Jiidisches Literarisches Jahr- 
buch" for 1927 by Dr. N. M. Gelber entitled "Oestereich und die Damas- 
kus Affair im Jahre 1840," as also Posener's new life of Cremieux. 

Still more recently, new material of a striking character supplementing 
the same from the British archives was published in the "Transactions of 
the Royal Historical Society" (Series 4, Vol. 12), p. 163 at pages 183-5, in 
an article by F. S. Rodkey, entitled "Lord Palmerston's Policy for the 
Rejuvenation of Turkey 1839-1841", which displays Palmerston as special 
protector of the persecuted Jews in Turkish dominions. In 1839 he in- 
structed the British Vice Consul in Jerusalem that 

"one of his duties would be to afford protection to Hebrews of the 
Holy Land". 

On Nov. 24th, 1840 he issued further instructions that 
"Jews shall be permitted to transmit through British consular authori- 
ties and the British embassy at Constantinople any complaints which 

464440 



they might wish to make to the i'orte against Turkish officials in 
Palestine". 

After the Congress of Berlin of 1878, international protection of re- 
ligious minorities may be said to have become a principle of international 
law. In Secretary Hay's famous "Rumanian Note" of 1902, with par- 
ticular reference to the Treaty there adopted governing the Balkan prin- 
cipalities, he wrote that he 

"does earnestly appeal to the principles consigned therein, because they 
are the principles of international law and eternal justice" (infra p. 40) . 

The right to make such international appeal was thus greatly enlarged 
from that date on, and in the Minority Treaties of 1919, infraction of 
the rights of religious, racial or linguistic minorities is therefore in terms 
described "as a matter of international concern" and violations of those 
treaties placed within the jurisdiction of the League of Nations and the 
World Court. The famous letter of Clenienceau as president of the Peace 
Conference of 1919, dated June 24th, 1919, which accompanied and ex- 
pounded the Polish Minority Treaty* so treats these general principles of 
justice and liberty as "an established tradition" ' , as "an obligation which 
they (the Pozvers) cannot evade, to~ secure in the most permanent and 
solemn form, guaranatees for certain essential rights, which will afford 
to the inhabitants the necessary protection" . 

In the plenary session of the Peace Conference of May 31st, 1919, at 
which these provisions were considered (Luzzatti's "God in Freedom" p. 
787 et seq.), M. Clenienceau pointed out that the reason why such pro- 
visions were imposed only on certain new or enlarged states was that 
"in the matter of minorities, everyone's history has not been quite the 
same. Some distinctions are necessary in this connection". 
It was erroneously assumed that Germany, whose Constitution had, 
for decades, granted absolute equality of civil, political and religious rights, 
regardless of race, creed or language, needed no express external impo- 
sition of such international sanctions, any more than England, France, 
Italy or the United States did. Moreover, as is further considered here- 
inafter (pp. 43-9), Germany, while seeking such international protection 
of her minorities as against Poland and other new states, expressly pledged 
herself to accord equal treatment to her minorities. To go back, how- 
ever, to 1882. 

Two incidents may be singled out with particular reference to notable 
public meetings which they gave rise to, which illustrate the value of 
popular agitation and protests and their relation to Governmental repre- 
sentations and actions. 

The first is an account of the famous Mansion House meeting in 
London on February 1st, 1882 concerning "Treatment of the Jews in 
Russia", (.reprint of which the Joint Foreign Committee of London has 
just issued in pamphlet form, together with account of a meeting at the 
Guild Hall, London, December 10th, 1890, which for lack of space I shall 
not deal with herein). The Mansion House meeting dealt .with Jewish 
persecutions in Russia, following the enactment of the infamous Russian 



Luzzatti's "God in Freedom" (pp. 745-750). 



14 






"May Laws", and I am quoting from the proceedings of the same, 
passages particularly apt today, relating to the two branches of the subject 
I have in mind. Then, as now, England held numerous public meetings of 
protest at the instance particularly of distinguished Christians, and upon 
the call and under the chairmanship of mayors of large cities in England. 
At the Mansion House meeting in question, the Lord Mayor OF 
London, in the course of his address as Chairman, said: 

"But if you look at the memorial, with the roll of names attached 
to it, you will see that every creed of religion is represented . . . that the 
great Christian world, severed and divided as it is, has combined in this 
memorial in requesting me to call this meeting. If, again, you take the 
political creeds of this country, you will find that men of all parties, 
whatever may be their views upon political matters, have combined in 
the same request. I feel, therefore, that I shall have the sympathy, not 
only of those who are present, but that the whole country is with us on 
this platform, and with those gentlemen whom I shall have the honour, 
presently, to call upon to propose some resolutions". 

The Archbishop of Canterbury wrote of his desire 
"to enter an emphatic protest against the recent outrages to which the 
Jewish people have been exposed. Unable to attend myself, I have 
asked Canon Farrar to be present and express the horror with which I 
contemplate the disgrace brought on the Christian name by these shame- 
ful persecutions". 

Alfred Tennyson, the Poet Laureate, wrote : 

"I am dismayed by the reports of this madness of hatred against the 
Jews, whatever the possible provocation, and of the unspeakable bar- 
barities consequent. If they are not universally denounced, it can only 
be that they are so alien to the spirit of the age as to be almost un- 
believable. The stronger the national protest the better. Our Govern- 
ment, however, may have reason to fear that it may do more harm than 
good by official intervention". 

Reverend Charles Spurgeon wrote : 

"As a Christian, I feel that the name of our Redeemer is dishonoured 
by such conduct on the part of his professed followers. As a Noncon- 
formist and a Liberal, believing in the equal rights of all men to live in 
freedom and safety, I must protest against a state of things in which 
the Jew is made an outlaw. Lastly, as a man, I would mourn in my 
inmost soul that any beings in human form should be capable of crimes 
such as those which have made Russia red with Israelitish blood. But 
what need even of these few sentences? The oppressed are sure of 
advocates wherever Englishmen assemble". 

The Earl of Shaftesbury, distinguished philanthropist and states- 
man, said : 

"There may be, or there may not be, a precedent for such a meeting ; 
but I hold that in these days of what is called the 'solidarity of nations', 
of enlarged responsibilities and greatly-increased force of public opin- 
ion, if there is not a precedent it ought to be established on this very day. 
I am glad that the people of England have come forward to make a 

15 



solemn declaration that, in their belief, there are moral as well as ma- 
terial weapons; that the moral zwapons in the long run are the more 
effectual and the more permanent; and that it is our duty to resort to 
those moral weapons when for use of the material we have neither the 
right nor the power . . . My lord, I have a very strong feeling — and I 
believe we all have a very strong feeling — as to the power of any open 
and constantly-repeated affirmation of a great principle founded upon 
justice and humanity. It carries with it prodigious weight. Have we 
not seen in times past, and in the present day the marvellous influence 
produced by a manifestation of public opinion founded upon such 
attributes? Even the Sultan of Turkey succumbs to public opinion, 
and the Shah of Persia yields to it. Napoleon, in the very plenitude of 
his power, as we have read in recent works, so feared the influence and 
power of Madame de Stael that he would not allow her to come to Paris, 
because, he said, if she came, it would injure his reputation, and influ- 
ence public opinion of the whole world against him. Was the stern and 
powerful Emperor Nicholas indifferent to public opinion, and especially 
the public opinion of England? Far from it. I know, from conver- 
sations held with him by one of my most intimate friends, who reported 
to me what had passed, that the Emperor Nicholas felt deeply and 
acutely the public opinion of England . . . My lord, we follow the 
details with horror and disgust, and we are come here for the purpose 
of expressing our opinion and of praying God that a stop may be put 
to atrocities which have afflicted and disgraced the generation and the 
age in which we live . . . This is a free meeting of free citizens, and 
we came here to express our deep regard for the human race. It is 
not simply because those who are persecuted are Jews that we are met 
here; Englishmen would, under similar circumstances, feel the same 
sympathy equally for Buddhists, Mahomedans, or Pagans. I know 
that many have a deep and special feeling towards the Hebrew race ; I 
have it myself, I confess, most deeply and most strongly ; but we are met 
here upon one grand universal principle. If there is one thing on earth 
which an Englishman loves better than another it is freedom — and it is 
the desire of every true Englishman that every one should be as free 
and as happy as he is himself . . . And, after all, if we approach the 
present Emperor, or in any way appeal to his Imperial Majesty, what 
are we asking for ? Are we asking anything to lower his dignity, or 
abate his power? Nay, on the contrary, are we not asking him to do 
that which would conduce very much to his honour ? Are we not ask- 
ing him to do justice to a large body of his loyal and suffering people? 
Are we not simply asking him to restrain violence, murder, outrage, and 
spoliation ? Are we not asking him to be a Cyrus to the Jews and not 
an Antiochus Epiphanes ? Are we not asking him to enter upon the 
greatest and noblest exercise of power ... to 'undo the heavy burdens,' 
and to 'let the oppressed go free' ? My lord, this is the purpose and ob- 
ject of our meeting; this will be the prayer of our Memorial, and may 
God in His mercy prosper it to the removal of these horrors and to the 
comfort of the Jewish people, on whose behalf we are gathered to- 
gether. His lordship concluded by moving 'That in the opinion of this 
meeting the persecutions and the outrages which the Jews in many parts 

16 



i 



; 



of the Russian dominion have for several months past suffered, are an 
offence to civilization to be deeply deplored' ". 

The Bishof of London said : 

"A few years back our country was horrified with accounts of atro- 
cities committed in what were then provinces of the Turkish Empire. 
The country was moved, but it had the consolation of knowing that 
though the sufferers were Christians, the perpetrators were almost all of 
another creed. Now, alas ! the case is the reverse. Those who have per- 
petrated these atrocities are men who bear the name of Christians ; so 
that the persecutions of the Middle Ages, on which history has long set 
the stamp of reprobation, have been reproduced in this latter part of the 
19th century, and the dark stain of rapine, lust, and murder is let fall 
again upon the fair fame of Christianity. We do feel this ; but I will 
venture to say that not in this crowded room alone, not in this metropolis 
merely, not in the cities and large towns of England only, are the sym- 
pathy and horror felt which have been expressed before you and have 
called you together today, but in the most quiet parsonages and in the 
most retired villages throughout England there is the same feeling of 
mingled horror, grief and shame that now in an age of civilization, in 
days when we think ourselves, and in some respects certainly are, better 
than our fathers, we find a Christian nation persecuting Jews. Know- 
ing this, my Lord Mayor, I venture to assume, speaking here from this 
platform, that I may without presumption, — or if it be presumption it 
will be easily pardoned, — in the name of every member of the Church of 
England second the resolution which Lord Shaftesbury has proposed". 

Cardinal Manning, on behalf of the Catholics, said : 

"It is because I believe that we are high above the tumults and con- 
flicts of party politics, that we are in the serene region of human justice, 
that I am here today . . . Further, I may say that, while we do noHntend 
to touch upon any question in the internal legislation of Russia, still 
there arc laws larger than any Russian legislation, laws which are equal- 
ly binding in London, in St. Petersburg, and in Moscow — the laws of 
humanity, of nature, and of God — which are the foundation of all other 
laws; and if in any legislation these are violated, all nations of Christian 
Europe, the tvhole commonwealth of civilised and Christian men, would 
instantly acquire a right to speak out loud. And now, my Lord, I must 
touch upon one point which I acknowledge has been very painful to me. 
We have all watched for the last twelve months what is called the anti- 
Semitic movement in Germany. I look upon it with a twofold feeling; 
in the first place, I look upon it with abhorrence as tending to disinte- 
grate the foundations of social life, and, secondly, with great fear lest 
it may tend to light up an animosity which has already taken fire in 
Russia and may spread elsewhere ... I have also read with pain accounts 
of the condition of the Russian Jews, bringing against them accusations 
which, if I touch upon them, I must ask my Jewish friends who hear me 
to believe I reject with incredulity and disgust. I have read that the 
cause of what has happened in Russia is that the Jews have been pliers 
of infamous trades, usurers, immoral, demoralizing, and I know not 
what. When I read these accusations, I ask, 'Is outrage the remedy? 

17 



Will they he cured hy outrage, murder, abominations of every sort? 
Are they not learning the lesson from those who ought to teach a 
higher law? Again, if it be true, which I do not believe, that they are 
in the condition described, are they not under penal law ? Is there any- 
thing that can degrade men more than to close against their intelligence, 
energy, and industry, all the honourable careers of public life? . . . 
Is there any career of public utility, any path of honour, civil or military, 
in which the Jews have not stood side 1 by side with their countrymen? 
If the charge is brought against the Jews of Russia, who will bring it 
against the Jews of England ? For uprightness, for refinement, for gen- 
erosity, for charity, for all the graces and' virtues that adorn humanity , 
where, I ask, will be found examples brighter, or more full of true hu- 
man excellence, than in this branch of the Hebrew race . . .' The other 
remedy I believe to be this — a stern and rigorous execution of justice 
upon evil-doers, coupled with an equally stern and rigorous concession 
of all that is right in the law of nature and of God to every man. All 
that is necessary for the protection of life and limb and liberty and 
property — all that constitutes human freedom — this, and nothing less 
than this, will be the remedy for the evils of which the Minister of the 
Interior complains. Now, my Lord, you have spoken very hopefully of 
what may be the effect of this meeting. Do not let us overrate it. If 
we believe this meeting will have done the work, and that we may cease 
to speak, I am afraid its effect will not be what we desire. Neither let 
us underrate the effect. I believe that all through England, I may say 
all through the United Kingdom, there will be a response to this meet- 
ing. Manchester and Birmingham have already begun, and whereso- 
ever the English language is spoken throughout the world, that which 
your Lordship has said so eloquently and powerfully will be known. I 
believe that at the very moment that we are assembled here a meeting 
of the same kind is being held in New York. And what is done here 
will be translated into every language of Europe. It will pass even the 
frontiers of Russia. Like the light and the air, it cannot be excluded: 
wheresoever there is human sympathy upon earth the declarations that 
are made here and elsewhere will meet zvith a response that will tend to 
put an end to these horrible atrocities. There is but one word more that 
I have to say. I have endeavored to deal with this question calmly and 
fairly. I have spoken on the importance of equal political justice; I 
should be ashamed if I were to cease to speak without saying a word on 
what will appeal strongly to the sympathies of Christian men. There is 
a Book, my Lord, which is common to the race of Israel and to us 
Christians. That Book is a. bond between us, and in that Book I read 
that the people of Israel are the oldest people upon the earth. Russias 
and Austrias and Englands are but of yesterday compared with the im- 
perishable people, which — with an inextinguishable life and immutable 
traditions, and faith in God and in the laws of God, scattered as it is all 
over the world, passing through the fires unscathed, trampled into the 
dust and yet never combining with the dust into which it is trampled — 
lives on, still a witness to us, a witness and a warning. We are in the 
bonds of brotherhood with it. The New Testament rests upon the Old. 

18 






They believe in half of that for which we would give our lives. Lei us, 
then, acknowledge that they arc united with us in a common sympathy 
. . . My Lord, I only hope that not one man in England, who calls him- 
self a civilized or Christian man, will have it in his heart to add by a 
single word to that which this great, and ancient, and afflicted people 
suffer, but that we shall do all we can by labour, by speech, and by 
prayer to lessen if it be possible, or at least to keep ourselves from 
sharing in sympathy with, these atrocious deeds". 

Cannon Farrar said: 

"My Lord Mayor, when a few years ago we got the news of Bul- 
garian atrocities all England thrilled from end to end with horror and 
detestation. I, for one, fully concede that the position of the Turkish 
Government in relation to the Bulgarian atrocities was wholly different 
from the relation of the Russian Government to the outrages on the 
Jews ; but the crimes were analogous, and in many instances identical ; 
and why, when the Bulgarian atrocities were denounced with burning 
indignation, are the annals of the Russian atrocities to be listened to 
with freezing apathy ? Is it because the sufferers in one case were Bul- 
garians and in the other are Jews? It is because the offenders in one 
case were Mohammedans and in the other are Christians? Is it be- 
cause one Government was weak and the other is mighty? Is it be- 
cause in one case the atrocities were committed amid the turbulence of 
war and in the other in the depths of peace? Is it because one was a 
sort of spasm in a comparatively transient agony and the other the out- 
come of deep-seated and long-continued disease? It is because we feel 
friendship for Russia that we claim the right to remonstrate, as we 
have always done in such cases. It is a positive duty that England 
should make her voice heard, and thai she should not speak 'with bated 
breath or whispering humbleness' . The voice of England has always 
been heard, thank God! on the side of the oppressed. We all know how 
Queen Elizabeth received the French Ambassador in London after the 
massacre of St. Bartholomew, We know how 5,000 brave Enqlishmen 
went to fight in the Low Countries against the tyranny of Alva. We 
know in what a voice of thunder Cromzvell demanded toleration for the 
Albigenses. We know in what tones Milton •wrote after the massacre 
in Piedmont. It has been part of our traditional policy to show our sym- 
pathy with down-trodden nationalities. We have sympathised with 
Poles, and Syrians, and Slavs, and Neapolitans. We have fought for 
Greeks at Navarino, and even for Turks at Alma and at Inkerman, and 
we have fought for what we believed to be the liberties of Europe again 
and again, from the days of Blenheim and Ramillies to those of Tala- 
vera and Waterloo. The Jews are at once the noblest and the most 
trampled -upon nationality in the world. Their religion was the cradle 
of Christianity. The Jews have among them names which, as Sir Wal- 
ter Scott says, as compared with any of our names, are like the gourd to 
the cedar, and which go back to the time when the voice of God shook 
the mercy-seat between the Cherubim. It is to the Jewish nation that 
humanity owes the deepest debt of gratitude, and it is on that nation 
that humanity has inflicted the deepest wrongs. I will detain you but 

19 



one moment longer. Weave approaching Russia in the most respectful 
and the most friendly spirit ; and because we are friendly and because 
we are united, and because the faithful wounds of a friend are better 
than the deceitful kisses of an enemy, we ask Russia to do what England 
has done, and give the Jews equal rights and privileges. We have abol- 
ished persecutions prolonged from age to age, we have done away with 
the Ghetto and the torturing whip, and the garb's disgrace, and such 
summons to Christian fellowship; we have abolished all such things, 
and almost every other great nation has, like ourselves, accorded to the 
Jews the rights of civilized men. Surely Russia will not stand alone 
in her treatment of the Jewish nation . . . We believe that she will 
follow the example of other European nations. It is because we believe 
that good is stronger than evil, and justice and mercy stronger than 
hate and wrong, that we feel perfectly sure that this meeting will not 
have been held in vain. We are here to raise the voice of England in 
the cause of mercy and justice, and we believe that that voice will be 
expressed in no uncertain tones". 

James Bryce said, (and his address is particularly interesting in its 
treatment of the relationship between public individual protests and Gov- 
ernmental representations) : 

"I feel honoured in being asked to address this meeting. I happen 
to be one of those who took an active part in the agitation which was 
raised by the Bulgarian massacres five years ago, and suppose it is for 
that reason that I have been asked to bear witness, or rather to confirm 
the testimony already given, that those who then spoke out so strongly 
against atrocities committed by Mohammedans against Christians feel 
nozv similar indignation against the attacks made by Christians upon 
Jews. I do not indeed, intend to draw a parallel between the case of the 
Bulgarian atrocities and the case of the recent cruelties in Russia, be- 
cause in what has lately happened in Russia we have to charge the 
Government of that country with remissness or neglect, not with com- 
plicity, while the fiendish cruelties which took place in Bulgaria were 
actually approved by the Turkish authorities, who promoted some of 
their most notorious perpetrators. But when all due allowance has been 
made for possible exaggerations with regard to the persecution of the 
Jews in Russia there remains quite enough not only to justify the hold- 
ing of this meeting, but to make the holding of it a matter of necessity 
and duty. We are bound to express our opinion as to the conduct of 
those who have joined in the commission of these horrors even with a 
stronger voice than is heard from any other nation in Europe, because 
we in England have admitted the Jews to complete political and civil 
equality with Christians, because Jews have been allowed to sit on the 
highest seats of justice, because many of them are to be found in the 
learned professions, and because there are so many Jews of whom we 
feel proud when we think of them as our fellow-countrymen. Our own 
experience, as well as the political principles we hold, has convinced us 
that the true way to do justice socially to men in the position of the 
Jews and to make them good members of society is to grant to them the 
fullest political and civil equality. I will not say any more on that point 

20 



because it has already been dealt with by previous speakers. I he reso 
Intion which I have In propose is as follows: 'That the Lord Mayor be 
requested to forward a copy of those resolutions to the Right I Ion. W. 
E. Gladstone and the Right Hon. Earl Granville, in the hope that I ler 
Majesty's Government may be able, when an opportunity arises, to 
exercise a friendly influence with the Russian Government in accord- 
ance with the spirit of the preceding resolutions'. Now that resolution 
does not suggest— it would not be right to suggest— what is commonly 
called diplomatic action. It would be a mistake, a great mistake, for us 
to call upon the Government for diplomatic action in a matter of this 
kind. We know how sensitive the Governments of Europe are as re- 
gards diplomatic representations in matters which affect their own con- 
duct ... It is because we know that diplomatic action, in the strict sense 
of the term, is impossible, that we think a meeting like this of such great 
value. A meeting like this is, in fact, a far better representation of the 
feelings of the people of England on the subject than any diplomatic 
action could be. The spontaneity of this meeting, the enthusiasm that 
characterizes it, the fact that there are assembled on this platform per- 
sons of almost every political party and of almost every religious de- 
nomination, and that not a voice has been raised throughout the country 
against holding this meeting, although a fortnight has passed since it 
was convened, these things afford the best proof that the heart of 
England is stirred on this question, and that the voice of England is 
heard in its proceedings . . . This burst of brutality is a phenomenon to 
be found all over South-Eastern Europe, and it is a phenomenon which 
is not confined to the less civilized peoples, for it has found expression, 
not, indeed, in so terrible a form, but it has found expression in the so- 
called anti-Semitic movement zvhich we have seen with so much regret 
in Germany. It is, indeed, enough to make one blush for modern civil- 
isation to think that a people like the Jews — a people whose ancient 
literature is so sacred in our eyes, on whose ancient religion our ozvn is 
based, who have rendered such eminent services to learning and science 
— in the nineteenth century should be subjected to such terrible perse- 
cution. What we may faMy say to our Government under these cir- 
cumstances is this;— 'We recognise the obstacles to direct diplomatic 
representations. We leave it to you how, when, and in what manner 
you will express to the Russian Government the sentiments which we 
entertain regarding these persecutions, and which we believe you share. 
But we hope and trust that you will discover some^ appropriate mode of 
expressing them, and of using your influence, the influence^ of England, 
on behalf of these unhappy sufferers'. It is because I believe that this 
question is one upon which all Englishmen are agreed, because this 
movement is far above the range of party politics, that I believe we may 
have confidence in our Government . . . What I understand this resolu- 
tion to do is to recognize the difficulties which stand in the way of formal 
diplomatic action, and to strengthen the hands of the Government by 
declaring that we hope and trust that opportunities will not be wanting 
for making the voice of England heard in this matter. I understand that 
we desire to encourage the Government to speak when they have an 
opportunity of doing so, and to assure them that when they do speak 



21 



it Will be with the voice of united iingland. We desire to see an exten- 
sion to every country of those great principles of religious toleration 
and civil equality which we were the first to establish as a nation, and 
the maintenance^ of which, while it conduces to our greatness and our 
happiness, is an inseparable bond between us and our Jewish brethren". 

Honorable Lyulph Stanley, M. P. said : 

"The first resolution is an important one because it expresses the de- 
testation which all humane men must feel at the cruelties which have 
been recently committed in Russia ; but the second resolution is to my 
mind more important because it touches not only the evil but also the 
remedy. I think we must all feel that this being a case of race-hatred, 
the only way to remove the spirit which creates these outrages is to 
treat all. the inhabitants of the country as citizens in common and to make 
them all equal as regards civil rights. The object of the resolution 
which I am seconding is that the two preceding resolutions should be 
laid before Lord Granville and Mr. Gladstone, in the hope tliat our Gov- 
ernment may be able to exercise some influence over the Russian Gov- 
ernment and thereby secure better treatment for the Jews. I entirely 
agree with Mr. Bryce as to the exterme delicacy of diplomatic action and 
the difficulty of any intervention on the part of our Government which 
would be at all likely to prove useful. The remedy for the evil should 
be thorough". 

The notable mass meeting held in New York City, February 1, 1882, 
at Chickering Hall was also very significant in its bearing upon the points 
herein under consideration. Apart from contemporary newspaper re- 
ports, the only extant account seems to be in a rare pamphlet published in 
New York in 1882, containing accounts of both the London and the New 
York meeting of the same date. The New York meeting was called at 
the request of ex- President U. S. Grant, Roscoe Conkling, and other 
distinguished American citizens, including the two leading German 
Americans of the day, Carl Schurz and Oswald Ottendorfer. Mayor 
Grace, who presided, said in the course of his brief address : 

"In the name of freedom of thought, of religious liberty, I feel that 
we are called upon to protest against the tyranical illiberatity of a gov- 
ernment which permits the persecution of an entire people for the 
simple reason that they are of a peculiar race and peculiar faith 
I am strongly reminded of the words of Pope Innocent IV in a letter 
which he wrote in defense of the Jews in 1247, where he says : 'What 
a shame it is they should be more miserable under Christian princes 
than their ancestors were under Pharaoh' ". 

The chief address was delivered by ex-Secretary of State William 
M. Evarts, the other speakers being chiefly clergymen of varying Chris- 
tian denominations. Mr. Evarts said: 

"But it is said ; do not nations correspond only through governments, 
and are not governments clothed with complete authority within the ter- 
ritories over which they rule, and are they not jealous of any intimations 
or suggestions made by friendly governments, however close their 
amity may be? Well, gentlemen, the time has gone when kings, couriers 

22 






and ships of war were the only messengers between nations, and when 
slate proclamations and announcements of ambassadors were the only 
messages that passed betzveen nation and nation. All this wonderful 
apparatus of communication which the world rejoices in and uses 
every day ; all this vast apparatus was not made for men and the trans- 
fusion of people with people, but the common diffusion of the world's 
common property in the interchange of thought, of feeling and of pur- 
pose. And nations now speak directly to nations, under no constraint 
or formality, and under no difficulty of making themselves understood 
... If oppression of the Jewish population by the government has given 
provocation to these outbreaks — and of that there is no history and no 
imputation that I have heard— but if it should be so, the Russian nation, 
I say, and its great monarch should learn this lesson : that whenever the 
law treats with unequal consideration different races and faiths, then 
human nature, that is above and beyond all law, pleads and works ever 
for the oppressed, and the oppressors' day is fixed, though it may be 
remote". 

The Kishineff massacre in Russia of 1903 led to holding of similar 
meetings of protest in the United States, notably one at Carnegie Hall, 
New York, May 27th, 1903, over which Mayor Seth Low presided, which 
I treat herein in similar fashion to that of the Mansion House meeting in 
London, of 1882. Both of these meetings are significant in that the rights 
of American citizens were not involved in either, but the protests were 
directed against the persecution of Jews in a foreign country. There was-, 
however, less offense against the principles of civilization in connection 
with the Kishineff massacres, because the government there involved 
claimed that the massacre occurred without its compilicity, while the Ger- 
man persecutions of today are avowedly governmental. Certainly so. as 
far as the "cold pogrom" is concerned, which deprives the Jews of their 
citizenship and ability to earn their livelihood in substantially aU the pro- 
fessions and economic pursuits of life, deprives them of educational op- 
portunities in the colleges and schools, and after forcing them to starve, 
even denied them their share of the public relief to which the taxes rung 
from them so largely contributed. Cyrus Adler's work "The Voice of 
America on Kishineff" published in 1904 by the Jewish Publication So- 
ciety of America contains an exhaustive account of the meetings held, 
together with related matter. Said Mayor Low, the Chairman of the Car- 
negie Hall meeting (page 118) : 

"But here I can say what I did not there — for this is a meeting held 
under Christian auspices — that in the name of our religion we grieve 
that such a stain should be cast upon it. Russia is a friendly Power to 
the United States, and there are especial reasons why Americans think 
kindly of her ; but not for this cause should we be silent now. Nay, 
rather, because we desire that the two nations may continue to be true 
friends, we beg her so to deal with those who are to blame for this 
shameful outrage as to make it impossible for such a thing to happen 
again within her borders. We beg of her to give more liberty to her 
Jewish subjects; for we may properly say that in freedom of opportu- 
nity and not in restriction of privilege, for Christian and Jew alike, 

23 



has been found, here in New York, a cure for such disturbances as those 
that in Russia have recently shocked the world. What New York has 
clone for 250 years Russia can do, if she will. May God put it into her 
heart to do so." 

Carl Schurz said (pp. 120, 121). 

"The persecution and maltreatment of human beings on account of 
their race or their religious belief is always an offense not only unjust to 
the victim, but also degrading to the offender. But the persecution and 
maltreatment of the Jews, as mankind has witnessed it, and is now wit- 
nessing it in several countries, has been not only especially barbarous in 
the ferocity of its excesses, but in a singular degree self-debasing and 
cowardly in the invention of the reasons adduced for its justification—. 
(p. 121). These horrors are only one more revelation of the ulterior 
tendency of a movement which here and there even assumes the mask 
of superior respectability. Here is the whole question again brought 
before the tribunal of the conscience of mankind. May this event serve 
to put in clearer light the fact that the history of the world exhibits no 
more monumental record of monstrous injustice than the persecutions 
inflicted upon the Jews during; so many centuries. We may then also 
hope to see the other fact universally recognized that wherever the Jew- 
ish race, with its wonderful vitality and its remarkable productiveness 
of talent and energy, enjoys the equal protection of just lazvs and a due 
appreciation of its self-respect, it will, far from remaining a race of 
aliens, furnish its full contingent of law-abiding, peaceable, industrious, 
public-spirited and patriotic citizenship, vying with the best." 

Ex-President Grover Cleveland said: (pp. 123, 124, 125). 
"The influences which have called us together tonight grow out of 
our recognition of the promptings of Christian civilisation and our 
dutiful devotion to the best and deepest of our national characteristics. 
This demonstration furnishes cheering and reassuring evidence that 
our American sympathy for the oppressed and abused, wherever they 
may be, our American love of humanity, and our attachment to justice 
and^ right, are still active and unimpaired. There is another American 
trait inwoven with the warp and woof of our national character, which 
is here exhibited in most gratifying freshness and strength. Our peo- 
ple, when their sympathies are touched, when their humane instincts are 
challenged, and when their hatred of oppression is aroused, are not 
afraid to speak; and in such circumstances it is not their habit to smother 
or cautiously soften their words, 

"Every American humane sentiment has been shocked by a late at- 
tack on the Jews in Russia— an attack murderous, atrocious and in everv 
way revolting. As members of the family of mankind, and as citizens of 
a free nation, we are here to give voice to the feeling that should stir 
every true man, and every American worthy of the name There is 
something intensely horrible in the wholesale murder of unoffending 
defenseless men, women and children, who have been tacitly if not 
expressly, assured of safety under the protection of a professedly civil- 
ized government. Such things give rise to a distressing fear that even 

24 






the enlightenment of the twentieth century has neither destroyed nor 
subdued the barbarity of human nature, nor wholly redeemed the civil 
ized world from 'man's inhumanity to man' . . . Our public servants 
should hear us speak; but we certainly ought to be justified in trusting 
the care of our national honor and duty in the premises and the enforce' 
ment of the humane instincts of our people, so far as this may be within 
governmental action, to those charged with the responsibility of man- 
aging our public affairs. 

"In the meantime, let the people of the United States, gathered to- 
gether in such assemblages as this, in every part of the land, fearlessly 
speak to the civilised world, protesting against every pretense of civili- 
sation that permits medieval persecution, against every bigoted creed 
that forbids religious toleration and freedom of conscience, against all 
false enlightenment that excuses hatred and cruelty towards any race of 
men, and against all spurious forms of government protection that 
withhold from any human being the right to live in safety and toil in 
peace." 

Edward M. Shepard said: (pp. 133, 134, 135, 136). 

"The misery, the murder, the hardship and the ostracism of the Jews 
in Kishineff or the^Jew anywhere else, or of any other race or of men of 
any other religion, is your care and my care, is the care of every nation, 
or ought to be, and the care of every creed, or ought to be . . . What can 
you and I do? These Russians in Bessarabia, if they ever hear of any 
who are here to-night, or ever hear of New York, will they listen to 
what we say? Yes, they wilt listen. They may be made to listen by 
those whom we can help to make listen. There sits upon no throne a 
man so powerful that he himself is not largely a creature of this public 
sentiment of the world. Therefore it is that you and I may utter a voice 
which shall be heard in St. Petersburg . . . And believe me, friends, no 
power on earth with its military and naval forces can override for one 
moment the sentiment of humanity to which we here to-night give voice. 
When this same anti- Jewish mania was illustrated in the republic of 
France in the Dreyfus case, every wise man knew that France for the 
moment was weakened to its center. Every time we know of a perse- 
cution in Russia directed against Jews, because they are Jews, we see 
beneath the veneer of that rapidly extending but imperfect civilization 
. . . The hour is late, but one word more. How shall we best test a gov- 
ernment, or a civilisation? Believe me, the crucial test is always to be 
found in its treatment of the minorities. Where the majority in faith, 
in power, in fashion, where the majority respects the minority— those 
who look differently, those who believe differently from them— -there is 
the highest civilisation. Where you have a government to protect the 
minority, to protect the unpopular, to protect, if you please, those who 
without crime or wrong are odious, that government is the best govern- 
ment. And I say that, not by way of further rebuke to the tyranny of 
Russia, which we declare to-night, but I say it of any land . . . We are 
here to respect one another; whatever the creed, whatever the race, 
whatever the belief, we are of one blood, one before God and humanity. 
And when that law, whether in greater things or in lesser things, is vio ■ 

. 25 



Idled , there is erlme and there is wrongdoing. Friends, may Ibis voice 
of New York go to Russia and to St. Petersburg, and to every corner of 
civilization and may it, of all things, penetrate to the heart and the mind 
of every American citizen, that the more we read of wrong-doing in 
other lands, we shall make it certain that nothing in any way resem- 
bling it shall disgrace the Stars and Stripes, nor disgrace American 
sovereignty the world over." 

At a related Philadelphia meeting called together on account of the 
Kishineff massacres, Judge Mayer Sulzberger, Chairman of the meet- 
ing, on July 12th, 1902, said (pp. 4, 5) : 

"The policy of the Russian Government is to persecute such of its 
subjects as are not of the Greek Church. The existence of Protestant 
and Catholic world powers tempers the cruelty with which Protestants 
and Catholics are pursued. The absence of a Jewish world power ag- 
gravates the ill-treatment of the Russian Jew. 

"We who sympathise with the latter must therefore appeal to the 
conscience of the world — to public opinion. Intangible and invisible, its 
existence is often doubted and its effect ridiculed, both by those who are 
with us and those who are against us . . . Both positions show that Russia 
is summoned to the bar of civilisation, appears and pleads, though the 
appearance is reluctant and the plea quibbling, untrue and self -con- 
tradictory. 

"Without hatred or malice toward Russia or its rulers, we must pro- 
claim the wrong that she is doing in pressing the life out of her Jewish 
subjects by law and administration and in encouraging outright murder, 
and worse, by the example of her policy . . . But whatever the official 
policy or procedure may be, our duty is to arouse public opinion all over 
the world in the firm faith that it will enter Russia and influence it, 
despite cordons and censorships. 

"For that purpose we are here to-day. To this campaign of publicity 
and protest, this peaceful struggle for humanity and justice, 'not by 
might nor by power, but by the spirit of God', we here devote ourselves 
until the end be attained." 

Senator Isidor Rayner wrote to a Baltimore meeting of protest held 
Mav 17th, 1903: (pp. 28-29). 






on May 17th, 1903 : (pp. 28-29) 



"The policy of the Russian government is at war with the Provi- 
dence of God, and if there is any justice in this World, some way must 
be found which will cause its rulers to abandon their creed of intoler- 
ance and oppression, and in place of it establish the principles of jus- 
tice and humanity. An earnest appeal from this government, emanating 
from its legislative branches through the intervention of friendly offices, 
in my judgment, could bring about the desired results, and every effort 
ought to be made to obtain this action. It has been done at other times 
in our history, and it will be done now if a combined pressure is brought 
upon Congress to take action in the matter. I can only say to you that 
a thrill of horror fills every impulse of my being as I realise that in this 
age of progress and enlightenment the liberal governments of this world 

26 



should stand by with supreme indifference as this procession of human 
beings marches on to the gates of martyrdom and despair. 

"I am willing in any way I can to unite with you in agitating this 
subject until the day shall come when this torture of the innocent shall 
cease and when they shall receive the human rights and human recog- 
nition that they are entitled to by every law of justice and humanity. 
This is all they claim. God has given them this inheritance, and it 
ought not in this day of religious freedom to be in the power of any 
government upon the face of the earth to deprive them of it." 

Jane Addams said at a Chicago meeting on May 18th, 1903: (pp. 
57-8). 

"We are here to express our disapprobation of Russia's cowardice 
in failing to protect her citizens from massacre, and we are here also to 
seek a remedy. Perhaps the saddest part of this all is that it has broken 
down the sentiment that all over the world was leveling ranks and oblit- 
erating race prejudice. It has put civilisation back to that extent. Let 
us hope that it will also react, by calling attention to this unjust preju- 
dice, in assisting to remove it. In addition to the sorrow we feel for the 
poor victims and sufferers, let us also turn to the mystery in which these 
outbreaks had their roots. Let us daily do what we can to allay this 
horrible race hatred which has been at the bottom of so many horrors 
in the past." 

Judge Rufus B. Smith said at a Cincinnati meeting on May 18th, 
1903: (p. 64). 

"But we are asked — arc we not powerless to prevent this persecution 
of the Jews in Russia ? So far as physical intervention is concerned, we 
are powerless. But we have the right to protest against it, and by that 
protest help to create a moral sentiment in the world which even Rus- 
sia cannot ignore. We have the right to have our protest sent to the 
authorities at Washington, and we have the right to request such au- 
thorities, in the manner which international usage permits, to have our 
protest called to the attention of the Russian government." 

President Edwin A. Alderman, of Tulane University said at a 
New Orleans meeting over which the Mayor of the city presided on June 
13th, 1903: (pp. 106, 107-8). 

"Thomas Jefferson declared that 'he had sworn eternal hatred 
against every form of tyranny against the mind and soul of man,' and 
he nobly lived up to that oath. That impulse is woven into my soul, 
too, and I am here to-night to protest against the exercise of these pas- 
sions, and I would protest, whether they occurred in Russia or in France, 
or America, or whether in my own home, or whether ten thousand 
leagues across the sea, or whether they were directed against the brown 
man, the yellow man, the black man, Jew or Gentile . . . We are Hebraic 
in our consciences, in the ethical content of our minds, in our notion 
of heaven and hell, and right and wrong, and, so far as I am concerned, 
whenever the Jew is oppressed, I feel that oppression as if it were the 
oppression of a brother ; and whenever that great historic race is belit- 
tled or disadvantaged, I would resent it as I would resent an injury to 
a brother. 

27 



"This democracy of ours, so strong and triumphant, must protest, 
t It err fore, against such deeds as the deed of Kishineff and the cause for 
it. It is the protest of the modern against the medieval, of the demo- 
cratic against the autocratic, of light against darkness, of opportunity 
against privilege ; and democracy has no choice but to take its stand and 
to speak its word. Hence, I am here as a democrat and a man and an 
American to protest against the medievalism, to welcome these people 
to our shores, if need be to ask that we look into our own life for any 
creeping manifestations of any such injustices." 

The protest meetings culminated in the preparation of the famous 
Kishineff Massacre Petition, signed by an enormous number of the lead- 
ing residents of the United States, in the course of which it was said : 
(pp. 479, 480). 

"The cruel outrages perpetrated at Kishineff during Easter of 1903, 
have excited horror and reprobation throughout the world. Until your 
Majesty gave special and personal directions, the local authorities failed 
to maintain order or suppress the rioting. The victims were Jews and 
the assault was the result of race and religious prejudice ... A public 
sentiment of hostility has been engendered against them and hangs over 
them as a continuing menace . . .Religious persecution is more sinful and 
more fatuous than war. War is sometimes necessary, honorable and 
just ; religious persecution is never defensible . . . With such an example 
before it, the civilized world cherishes the hope that upon the same 
initiative there shall be fixed in the early days of the twentieth century, 
the enduring principle of religious liberty ; that by a gracious and con- 
vincing expression your Majesty will proclaim, not only for the govern- 
ment of your own subjects, but also for the guidance of all civilized 
men, that none shall suffer in person, property, liberty, honor or life, 
because of his religious belief ; that the humblest subject or citizen may 
worship according to the dictates of his own conscience, and that gov- 
ernment, whatever its form or agencies, must safeguard these rights 
and immunities by the exercise of all its power. 

"Far removed from your Majesty's dominions , living under differ- 
ent conditions, and owing allegiance to another Government, your peti- 
tioners yet venture, in the name of civilization, to plead for religious 
liberty and tolerance, to plead that he who led his own people and all 
others to the shrine of peace, will add new luster to his reign and fame 
by leading a new movement that shall commit the whole world in oppo- 
sition to religious persecution." 

This was delivered to Secretary of State Hay on June 15th, 1903, 
whereupon he said: (pp. 471-2). 

"No person of ordinary humanity can have heard without deep 
emotion the story of the cruel outrages inflicted upon the Jews of 
Kishineff. These lamentable events have caused the profoundest im- 
pression throughout the world, but most especially in this country, 
where there are so many of your co-religionists who form such a desir- 
able element of our population in industry, thrift, public spirit and com- 
mercial morality. Nobody can ever make the Americans think ill of 
the Jews as a class or as a race ... we know them too well. In the pain- 

28 






ful crisis through which we arc now passing the Jews of I lie United 
States have given evidence of the highest qualities generosity, love of 
justice, and power of self-restraint. 

"The Government of the United States must exhibit the same quali- 
ties. I know you do not doubt the sentiments of the President. No one 
hates more energetically than he does such acts of cruelty and injustice 
as those we deplore. But he must carefully consider all the circum- 
stances and then decide whether any official action can be taken in 
addition to the impressive and most effective expression of public opin- 
ion in this country during the last month." 

Secretary Hay accompanied the committee which presented the peti- 
tion to the White House, where President Theodore Roosevelt said : 
(pp. 472-473,475-476). 

"Mr. Chairman : I need not dwell upon the fact so patent as the 
widespread indignation with which the American people heard of the 
dreadful outrages upon the Jews in Kishineff. I have never in my 
experience in this country known of a more immediate or a deeper 
expression of sympathy for the victims and of horror over the appalling 
calamity that has occurred. 

"It is natural that while the whole civilized world should express 
such a feeling, it should yet be most intense and most widespread in the 
United States; for of all the great Powers I think I may say that the 
United States is that country in which from the beginning of its na- 
tional career most has been done in the way of acknowledging the debt 
due to the Jewish race and of endeavoring to do justice to those Ameri- 
can citizens who are of Jewish ancestry and faith . . . Exactly as I should 
claim the same sympathy from any one of you for any tragedy that 
happened to any Christian people, so / should hold myself unworthy of 
my present position if I failed to feel just as deep sympathy and just as 
deep sorrow and just as deep horror over an outrage like this, done to the 
Jewish people in any part of the earth. I am confident that much good 
has already been done by the manifestations throughout the country, 
without any regard to creed zvhatsoever, of horror and sympathy over 
what has occurred ... I will consider most carefully the suggestions that 
you have submitted to me, and whether the now existing conditions are 
such that any further official expression would be of advantage to. the 
unfortunate survivors, zuith whom we sympathize so deeply. Nothing 
that has occurred recently has had my more constant thought, and 
nothing will have my more constant thought than this subject. 

"In any proper way by which beneficial action may be taken, it will 
be taken, to show the sincerity of the historic American position of 
treating each man on his merits without the least reference to his creed, 
his race or his birthplace." 

As known, the President directed the U. S. Ambassador at St. Peters- 
burg to communicate the contents of the petition to the Russian Minister 
of Foreign Affairs, in a public and published cablegram, asking whether 

29 






it would be received for submission to the Kniperor himself. While the 
Russian Government declined to receive the petition, its contents thus 
became known all over the world, and were brought home to the Emperor 
himself. 

AS TO OFFICIAL GOVERNMENTAL REPRESENTATIONS, 
they are often loosely spoken of as "Intervention", which includes all 
forms of representation and action by external Powers, according to vary- 
ing connotations of the term, ranging from mere "intercession" to forcible 
"interference". If one examines the leading works on Intervention, such 
as H. G. Hodges' "The Doctrine of Intervention" (1915) ; E. C. Stowell's 
"Intervention in International Law" (1921), Lingelbach's "Doctrine and 
Practice of Intervention in Europe" (1900), Charles E. Martin's "Policy 
of the United States as Regards Intervention" , Pitman B. Potter's "Inter- 
vention en Droit International Moderne" (in "Academie de Droit Inter- 
national Recueil des Cours," 1930 II, Vol. 32, pp. 611-690) and Oscar S. 
Straus'. "Humanitarian Diplomacy of the United States'" in his "The 
American Spirit" (reprinted from the "American Society of International 
Law Proceedings" for 1912, p. 45, et seq.), we find in each, clear recog- 
nition of the right — even before the Minorities Treaties of 1919 — at least 
to make "intercessions" on behalf of the victims of religious persecution 
of another State. Precedents as to intermediation for Jews have been 
particularly frequent and common, because they have no country of their 
own, other than the one involved in persecuting such religious minority. 

Recurring to the brutal edict of Empress Maria Theresa of 1744, for 
the expulsion of all her Jewish subjects from Bohemia and Moravia, I 
myself had occasion to point out in my "Jewish Rights at the Congresses 
of Vienna and Aix-la-Chapelle" (p. 46)— written for use at the Peace 
Conference of 1919— that "arguments for such intermediation (were) not 
only the behests of humanity and justice, but that Burmania mentions the 
important Dutch commercial interests that would be jeopardized, and the 
injury occasioned through the resulting forced immigration into Holland, 
thus antedating the Hay Roumanian note by nearly two centuries. The 
works I cited there, an article in "Monatsschrift fur Geschichte und Wis- 
senschaft des Judentums". Vol. 44, pp. 177 et seq. and 259 et seq. by 
Krengel, and David Kaufmann ; "Gesammelte Schriften" II 328-373, 
have since been augmented by "Die Juden in Prag" in "Festschrift der 
Loge Praga des Ordens Bnai Brith" (Prague 1927), Bergel's article in 
"Jahrbuch der Gesellschaft f iir Geschichte der Juden in der Czechoslovak 
Republik" I (1929) and Dr. S. H. Lieben's article in Idem. Vol. 4, and a 
Dutch work of 1924 by Prinz. 

The actual forcible intervention of England and France in Syria in 
1860 to stop Mt. Lebanon massacres of Christians deserves fuller con- 
sideration. It followed disturbances by Maronites and Druses, and is 
described at length in Alfred Lyall's "Life of Marquis of Dufferin" I. 
99-124. It was also considered at length in Iskandar's "The Lebanon in 
Turmoil", edited by J. F. Scheltema for Yale University, and reviewed in 
the "American Historical Review" Vol. 26, p. 326 (Jan. 1921) by F. S. 
Bliss. The subject was discussed at length in Parliament by leading 



30 



statesmen, including Lord Stratford de Radcliffe, Lord John Russell, 
Lord Wodehouse, Lord Brougham, Bernal Osborn, Sir James Fer 

guson and others.* 

II. American Governmental Intercession on Behalf of the Jews 

In an article by me which was published in the "New York Times" on 
March 24th, 1933, as to the practice of our Government in aid of viclims 
of religious and racial persecution, including both our own citizens and 
residents of foreign countries in the general interest of humanity, 1 col- 
lected many precedents, herein enlarged, which evidence, I think, an im- 
portant historic policy on the part of our Government. 

1. As to the right of American citizens, whether native or naturalized, 
and their wives and minor children, to our Government's protection in 
Germany, there is, of course, no occasion for any discussion. Title 8, Sec 
13 of the U. S. Code, re-enacting Rev. St. Sec. 2000, which was itself 
declaratory of subsisting law, in terms formulates this governmental ob 
ligation as to citizens, and Prof. Borchard's important work on "Diplo- 
matic Protection of Citizens Abroad" emphasizes the same. The leading 
case of Yick Wo vs. Hopkins, 118 U. S, 356, as to the right of citizens of 
foreign countries here to the enjoyment of substantially all the civil rights 
enjoyed by our own citizens under our Constitution also measures the 
reciprocal rights we have a right to expect from other countries in treating 
our own citizens abroad. In the leading case of Truax vs. Raich, 23 ( J 
U. S. 33, these principles were applied to overthrow legislation limiting 
ordinary employment to U. S. citizens. Under our citizenship laws, pur- 
suant to which the wives and certain minor children of citizens may not 
at once acquire abroad the American citizenship of the husband and father, 
the same right of protection arises in favor of such wives and children, 
inchoate citizens. The rules of international law recognize that aliens 
residing in foreign lands, though not full citizens, ought as to civil rights 
enjoy similar protection, in view of the unity of the family tie. In our 
long controversy with Russia as to anti-Jewish discriminations, we con- 
tinuously emphasized the fact that religious differences may not detract 
from the rights of Jewish citizens holding American passports under our 
constitution and fundamental principles. ("Termination of the Treaty of 
1832 between the United States and Russia — Hearing before the Com- 
mittee on Foreign Affairs of the House of Representatives, Dec. 11th, 
1911," Revised Edition, pp. 105 et seq.). As stated by Secretary Evarts 
under date of September 4th, 1880 (p. Ill), copied from our "Foreign 
Relations" 1880 (pi 880) : 

"It should be made clear to the Government of Russia that in view 
of this Government, the religion professed by one of its citizens has 
no relation whatever to that citizen's right to the protection of the 
United States, and that in the eye of this Government an injury offi- 
cially dealt to Mr. Pinkos at St. Petersburg on the sole ground that he 



♦(See Great Britain, Parliamentary Debates, Series III Vol. 159 pp. 1647-55. 22'iU ; 
Vol. 160 pp. 603-627, 689-690, 346-7; 632-8, 641-653, 696-7; 1130-1; 1478-86; 1815. Vol. 
161 pp. 192-8, 868-876; 878-9, 1092-1123; 1229-1231; 1525-6; 1540-1, 2154. Vol. 162 1>|>. 
202-3, 500-515; 1183; 1870; 1894. Vol. 163 pp. 233-242; 473 and 938). 

31 



is a Jfw presents the same aspect that an injury officially done to a 
citizen of Russia in New York for the reason that he attends any par- 
ticular church there would he in the view of his Majesty's Govern- 
ment." 
Said Acting Secretary John Hay, under date of October 22nd, 1880, 
in instructions to our Minister to Russia (Id., p. 115; from "Foreign Re- 
lations" for 1881, p. 993) : 

"It is hoped that you will press your representations to the success- 
ful establishment of the principle of religious toleration for our citizens 
peacefully residing or travelling abroad, which we as a Nation have 
such a deep interest in maintaining." 

Again, under date of March 3rd, 1881, Secretary Evarts wrote (Idem., 
p. 124; Foreign Relations, 1881, p. 1007) : 

"This Government does not know or inquire into the religion of the 
American citizen it protects. It can not take cognizance of the methods 
by which the Russian authorities may arrive at the conclusion or con- 
jecture that any given American citizen professes the Jewish faith. The 
discussion of the recent cases has not as yet developed any judicial pro- 
cedure whereby an American citizen, otherwise unoffending against the 
laws, is to be convicted of Judaism, if that be an offense under Russian 
law ; and we are indisposed to regard it as a maintainable point that a 
religious belief is, or can be, a military offense, to be dealt with under 
the arbitrary methods incident to the existence of a 'state of siege.' '"" 

Said Secretary Blaine on July 29th, 1881 (Idem., p. 129; Foreign 
Relations, 1881, p. 1030) : 

"I need hardly enlarge on the point that the Government of the 
United States concludes its treaties with foreign states for the equal 
protection of all classes of American citizens. It can make absolutely 
no discrimination between them, whatever be their origin or creed. So 
that they abide by the laws at home or abroad it must give them due 
protection and expect like protection for them. Any unfriendly or dis- 
criminatory act against them on the part of a foreign power with which 
we are at peace would call for our earnest remonstrance, whether a 
treaty existed or not." 

On July 1st, 1904, Secretary Hay wrote (Idem., p. 220, Foreign Rela- 
tions, 1904, p. 790) : 

"You will make known to his Excellency (Count Lamsdorff) the 
views of this Government as to the expediency of putting an end to 
such discriminations between different classes of American citizens on 
account of their religious faith when seeking to avail themselves of the 
common privilege of civilized peoples to visit other friendly countries 
for business or travel. That such discriminatory treatment is naturally 
a matter of much concern to this Government is a proposition which his 
Excellency will readily comprehend without dissent. In no other 
country in the world is a class discrimination applied to our visiting 
citizens." 



32 



\ 



The continued representations our Government made in 1895 to Tur- 
key, protesting against Turkish prohibition of emigration of Armenian 
relatives of American citizens of Armenian extraction, not themselves 
citizens, should also be noted (U. S. Foreign Relations, 1895 II, 1471-3 ; 
1896, p. 924; this citation is augmented hereinbefore pp. 11-13). 

Again, under date of Aug. 22nd, 1895, acting Secretary Adde wrote 
{Idem., p. 186 ; Foreign Relations 1895, p. 1067) : 

"Viewed in the light of an invidious discrimination tending to dis- 
credit and humiliate American Jews in the eyes of their fellow citizens, 
it is plain that the action of Russian consular officers does produce its 
effect within American territory, and not exclusively in Russian juris- 
diction." 
When Russia claimed that the discrimination was a racial and not a 
religious one, our government replied that "the two questions are insepar- 
able" (Idem., p. 180; Foreign Relations, 1895, p. 1058). Similarly in 
Yick Wo vs. Hopkins, supra, a racial discrimination effected by unlawful 
administration of law, was held violative of the due process of law accord- 
ed by the 14th Amendment. 

In connection with the Keiley case, in which a purely political right 
was involved, our Government emphatically expressed its disapproval of 
Austria's course in declining to receive Mr. Keiley as U. S. Minister 
because his wife was a Jewess. President Cleveland, in his annual mes- 
sage to Congress on Dec. 8th, 1885, said that Austria's course 

"could not be acquiesced in without violation of my oath of office and 
the precepts of the Constitution, since they necessarily involved a limi- 
tation in favor of a foreign government, upon the right of selection by 
the Executive, and required such an application of a religious test as a 
qualification for office under the United States as would have resulted 
in the practical disfranchisement of a large class of our citizens and the 
abandonment of a vital principle of our Government" (Richardson's 
"Messages of the Presidents," Vol. VIII, pp. 325-6). 

In connection with this Keiley case, Secretary Bayard wrote on May 
18th, 1885 (Foreign Relations for 1885, pp. 48-51, summarized in Moore's 
International Law Digest IV, pp. 480-3) : 

"It is not within the power of the President, nor of the Congress, 
nor of any judicial tribunal in the United States to take or even hear 
testimony, or in any mode to inquire into or decide upon the religious 
belief of any official, and the proposition to allow this to be done by 
any foreign Government is necessarily and a fortiori inadmissible. To 
suffer an infraction of this essential principle would lead to a disfran- 
chisement of our citizens because of their religious belief, and thus 
impair or destroy the most important end which our constitution of 
Government was intended to secure. 

Religious liberty is the chief cornerstone of the American system of 
government, and provisions for its security are imbedded in the writ- 
ten charter and interwoven in the moral fabric of its laws. Anything 
that tends to invade a right so essential and sacred must be carefully 
guarded against, and I am satisfied that my countrymen, ever mindful 

33 



of the sufferings and sacrifices necessary to obtain it, will never consent 
to its impairment for any reason or under any pretext whatsoever . . . 
It is not believed by the President that a doctrine and practice so 
destructive of religious liberty and freedom of conscience, so devoid of 
catholicity, and so opposed to the spirit of the age in which we live, can 
for a moment be accepted by the great family of civilized nations or be 
allowed to control their diplomatic intercourse. Certain it is, it will 
never, in my belief, be accepted by the people of the United States, nor 
by any administration which represents their sentiments." 

See also Moore's International Law Digest IV, p. 1, et seq., 97, et seq. 

In connection with Russian discriminations, Secretary Evarts on June 
28th, 1880 ("Termination of the Treaty of 1832," etc., p. 109; Foreign 
Relations, 1880, p. 875), wrote: 

"It is confidently submitted to His Majesty's Government whether 
in the event Mr. Pinkos should be finally expelled from Russia or be 
otherwise interrupted in his peaceful occupation, on the sole ground 
that his religious views are of one kind, rather than another, he would 
not be justly entitled to make reclamation for the damage and loss to 
which he might be subjected." 

Again, on Sept. 4th, 1880 (Idem., p. Ill; Foreign Relations for 
1880, p. 880), Secretary Evarts wrote: 

"It is evident that the losses incurred by the abandonment of his 
business in St. Petersburg will afford Mr. Pinkos ground for reclama- 
tion, if no other cause can be shown for the official breaking up of his 
business than the religious views he entertained. The direct application 
to have Mr. Pinkos indemnified, however, may be deferred until he 
shall make it appear what those losses were." 

The Pinkos case is considered at some length in Moore's Inter- 
national Law Digest IV, pp. 114-116, as also unlawful racial discrim- 
inations (TV, p. 109), and religious discriminations (IV, p. Ill, et 
seq.). See also VI, p. 247, et seq.; p. 333, et seq. 

In this connection it is interesting to note the arbitral decision in the 
case of Mme. Chevreu, lately published in the "American Journal of Inter- 
national Law," Jan. 1933 (p. 153, et seq.), by which heavy damages were 
awarded against England for arrest and expulsion of the French subject 
involved from British territory without adequate investigation in war- 
time. Of course liability arises for failure to accord adequate protection 
from violence, as well as for governmental direct acts, especially where 
there is popular approval of such violence or of other unlawful discrim- 
inations (Moore's International Law Digest VI, pp. 809-883; Borchard, 
supra, p. 220, et seq.). 

II. But international law and especially American precedents have 
advanced far beyond mere intervention on behalf of our own citizens, 
where religious rights are involved, and this has become our historic 
American policy. As far back as 1870, Charles Sumner, then Chairman 
of the Senate Committee on Foreign Relations, when offering a resolution 
of inquiry into Rumanian anti-Jewish atrocities, said he did so "in the 

34 



" 









interest of humanity and in that guardianship of humanity which belongs 
to the Great Republic" ("Congressional Globe," 41st Congress, Second 
Session, Part 5, pp. 4044-5). 

In the able address above cited by Oscar S. Straus, on "Humanitarian 
Diplomacy of the United States," in his "The American Spirit" (pp. 19- 
38), a number of notable instances of intermediation by our Government 
on behalf of non-American religious and political victims of persecution 
are collated and analyzed. He wisely calls these "intercessions," instead 
of "interventions." Among other instances he enumerated were our inter- 
cession on behalf of Greek independence; on behalf of Kossuth and other 
victims of the abortive revolutions of 1848 (herein before considered) ; on 
behalf of Cuba; on behalf of Christians (particularly missionaries and 
Armenians) in the Orient (hereinbefore considered), and on behalf of 
Jews in Russia and Rumania ; especially since the Hague Conventions. It 
is significant that so many instances of such intercession by our Govern- 
ment on behalf of persecuted Jews who were not our citizens have taken 
place, beginning in 1840, and it is obvious that these have been largely 
actuated by the circumstance that our country was the pioneer in estab- 
lishing complete religious liberty, and because Jews constitute purely a 
religious sect, having no other country of their own to appeal to, when 
persecuted by their own country of nationality. Passages from H. C. 
Hodges' work on "The Doctrine of Intervention" (1915) were quoted in 
Kohler and- Wolf's "Jewish Disabilities in the Balkan States, American 
Contributions toward their Removal, with Particular Reference to the 
Congress of Berlin," pp. 94-7. 

The leading instances in which our Government thus interceded for 
persecuted Jews were : ( 1 ) On behalf of Jewish victims of the Damascus 
blood accusations of 1840 ; (2) our efforts, particularly Minister Fay's, on 
behalf of Jewish emancipation in Switzerland ; (3) our course in behalf of 
the Rumanian Jews, particularly in connection with Benjamin F. Peix- 
otto's appointment as U. S. Consul to Rumania in the early 70's ; (4) our 
course in connection with Jewish persecutions in the Balkans at the Con- 
gress of Berlin, in 1878, and thereafter; (5) President Cleveland's and 
Secretary Bayard's course towards Austria in connection with the Keiley 
case in 1885 ; (6) Secretary Hay's famous Rumanian note of 1902 ; (7) 
President Roosevelt's course towards Russia in connection with the Kish- 
ineff massacre petition ; (8) the movement which led to the abrogation in 
1911 of our treaty with Russia of 1832, because of anti-Jewish discrim- 
inations ; and (9) President Wilson's and Col. House's course at the Peace 
Conference of 1919 in connection with minority protection treaties and 
cessation of Polish anti-Jewish actions. 

Some of these precedents deserve consideration at somewhat greater 
length. First in order was our course in connection with the Damascus 
Blood Accusations of 1840, namely, prosecutions based on the atrocious 
fabrication that Jews use non-Jewish blood for ritual purposes. This inci- 
dent is considered in Moore's International Law Digest VI, 347, but more 
fully in Dr. Cyrus Adler's book "Jews in the Diplomatic Correspondence 
of the United States" (pp. 4-6), being No. 15 of the Publications of the 
American Jewish Historical Society (1906). (Also Publications Ameri- 

35 



can Jewish Historical Society, No. 8, pp. 141-5). The latter works may 
in this instance he supplemented by a significant letter which I myself was 
privileged to publish more than thirty years ago from a transcript made 
for me by the State Department, reading as follows, being a letter dated 
August 17th, 1840, sent by Secretary of State John Forsyth under Presi- 
dent Van Buren to David Porter, our Minister to Turkey (Publications 
No. 9, pp. 153-4) : 

"Sir :- — In common with the people of the United States, the Presi- 
dent has learned with profound feeling of surprise and pain, the atro- 
cious cruelties which have been practised upon the Jews of Damascus 
and Rhodes., in consequence of charges extravagant and strikingly sim- 
ilar to those, which in less enlightened ages, were made pretexts for 
the persecution and spoliation of these unfortunate people. As the 
scenes of these barbarities are in the Mahomedan dominions, and, as 
such inhuman practices are not of an infrequent occurrence in the East, 
the President has directed me to instruct you to do everything in your 
power with the government of his Imperial Highness, the Sultan, to 
whom you are accredited, consistent with discretion and your diplo- 
matic character, to prevent or mitigate these horrors — the bare recital 
of which has caused a shudder throughout the civilized world ; and in 
an especial manner, to direct your philanthropic efforts against the em- 
ployment of torture in order to compel the confession of imputed guilt. 
The President is of the opinion that from no one can such generous 
endeavors proceed with so much propriety and effect, as from the rep- 
resentative of a friendly power, whose institutions, political and civil, 
place upon the same footing, the worshippers of God, of every faith and 
form, acknowledging no distinction between the Mahomedan, the Jew, 
and the Christian. Should you, in carrying out these instructions, find 
it necessary or proper to address yourself to any of the Turkish author- 
ities, you will refer to this distinctive characteristic of our govern- 
ment, as investing with a peculiar propriety and right, the interposition 
of your good offices in behalf of an oppressed and persecuted race, 
among whose kindred are found some of the most worthy and patriotic 
of our citizens. In communicating to you the wishes of the President, 
I do not think it advisable to give you more explicit and minute instruc- 
tions, but earnestly commend to your zeal and discretion a subject 
which appeals so strongly to the universal sentiments of justice and 
humanity. 






I am, sir, your obedient servant, 



John Forsyth. 



(2) The invaluable and long-continued efforts of our Government to 
effectuate Jewish emancipation in Switzerland were described at length by 
Mr. Sol. M. Stroock in Publications of the American Jewish Historical 
Society, No. 11, pp. 7-52, and Dr. Cyrus Adler's above-cited work contains 
some additional transcripts of official documents (pp. 25-39) . Several of 
the Swiss Cantons maintained laws forbidding Jews to settle there, and 
they were absolutely repealed only through an amendment of the Swiss 
Constitution, according full religious liberty, finally adopted in 1874. 

36 






Secretary of State Lewis Cass, under date of November 5th, 1857, wrote 
to our Minister in Switzerland, Theodore S. Fay : 

"I am directed by him (President Buchanan) to instruct you to use 
all the means in your power to effect the removal of the odious restric- 
tions complained of, which, it is understood, are contained in the laws 
of but four of the Swiss cantons." 

Minister Fay replied under date of January 19th, 1858: "I shall en- 
deavor to present the question in so clear a light as to demonstrate that 
a more liberal course is required by the dignity and even by the material 
interest of Switzerland herself. I hope also to procure a larger interpre- 
tation of the law in favor of our fellow-citizen, that some practical benefit 
may immediately result." Accordingly, on May 26th, 1859, Mr. Fay pre- 
sented his classical detailed "Israelite Note" to the Swiss Government, 
and it was so convincing that it was promptly printed in German and 
French by his authority, and was a potent factor in inducing" the cantonal 
laws to be changed. Secretary (then Senator) Cass had previously con- 
demned this discrimination in the Senate, under date of May 15th, 1854, 
saying : 

"Jew and Gentile, all are equal in this land of law and liberty, and 
as the former suffers most illiberal persecution, his case is entitled to 
the most commiseration." 

Again, he wrote as to our principle of religious liberty : 

"I mean to say that it suits all nations and all times as the law of the 
right implanted by the Divine Law Giver in the human breast, and who- 
ever fails, be the guilty party prince or people or priest, will in vain 
seek to avoid the just consequence of presumptuous intolerance." 

(3) As to our course concerning Rumanian persecutions, Benjamin 
F. Peixotto, himself a Jew, was appointed U. S. Consul to that princi- 
pality for the express purpose of promoting Jewish emancipation and the 
cessation of anti-Jewish activity, President Grant handing him a letter 
of credence dated December 8th, 1870, which concluded with the words : 
"The United States, knowing no distinction of her own citizens on account 
of religion or nationality, naturally believes in a civilization the world over 
which will secure the same universal views." I was privileged in connection 
with the late Simon Wolf to write a detailed account of our relations to 
Jewish emancipation there in above-cited volume entitled "Jewish Dis- 
abilities in the Balkan States, etc." — constituting No. 24 of the "Publi- 
cations of the American Jewish Historical Society." It was in connection 
with those Balkan anti-Jewish activities that Charles Sumner uttered the 
words quoted hereinbefore. 

(4) The book just cited contains details as to action by the Great 
Powers at the Congress of Berlin in 1878 in order to accord Jews full and 
equal rights in the Balkan States, including excerpts, from the protocol of 
the Congress of Berlin. It was there that Prince Bismarck, president of 
•the Congress, described these religious liberty clauses as provisions "which 
have in view an advance in civilization and against which doubtless no 
Cabinet will have objections in principle" (p. 57), and also stated (p. 64) : 

37 



"The assent of Germany is always jjji vt-n for every motion favorable to 
religious liberty." In Dr. Cyrus Adler's above-cited work, attention was 
called to the fact that John A. Kasson, U. S. Minister to Austria, under 
date of June 5th, 1879, first suggested that Jewish disabilities be placed 
on the agenda of the Congress (pp. 48-50). In his dispatch to the State 
Department, Mr. Kasson wrote : 

"It would be to the honor of the United States Government if it 
could initiate a plan by which at once the condition of American He- 
brews resident or travelling in Roumania, and the conditions of natives 
of the same race, could be ameliorated and their equality before the law 
at least partially assured. The European congress is about to assemble, 
and will be asked to recognize the independence of Roumania. Would 
there be any just objection to the United States Government offering on 
its part, if the European powers would on their part, make the same 
condition, to recognize the independence of that country, and to enter 
into treaty stipulations with its government, only upon the fundamental 
preliminary agreements : 

"1, That all citizens or subjects of any such foreign nationality 
shall, irrespective of race or religious belief, be entitled to equal rights 
and protection under the treaty and under their laws. 

"2. That all subjects or citizens under the jurisdiction of the Rou- 
manian Government shall, irrespective of their race or religious belief, 
have equal rights of trade and commerce with the citizens or subjects of 
the foreign governments making such treaty ; equal rights in the pur- 
chase, consumption, barter, or sale of the products of such foreign 
country, and in sales of Roumanian products to such aliens; equal 
rights to make contracts with the citizens or subjects of such foreign 
government, and to be equally protected by the laws in the exercise of 
the rights so secured. 

* * * Your own judgment will improve, doubtless, the form 
of action above suggested; but it will be sufficient, I hope, to attract 
your attention to a question, the favorable solution of which would 
greatly gratify the American people, and evoke especial gratitude 
from that race which has found in the United States absolute legal 
equality and security, and the occasion of the congress is most favor- 
able for giving it effect, if approved. 

John A. Kasson." 

In above-cited work by Simon Wolf and myself (p. 42), a despatch from 
Bayard Taylor, then U. S. Minister at Berlin, was quoted concerning his 
own efforts on behalf of Jewish rights at that Congress, despite the fact 
that the United States did not participate officially ; it is as follows : 

"The chief interest which the Government and people of the United 
States have in the treaty is its enforcement of religious liberty in Rou- 
mania, Bulgaria and Eastern Roumelia. This is the only point which 
I felt at liberty to present unofficially to several members of the Con- 
gress, and I am glad to report that it was opposed by none of the states- 
men present." 

38 






(5) President Cleveland's and Secretary Bayard's utterances as to 

the Keiley affair have already been adequately quoted herein (pp, 33-4). 

(6) Secretary Hay's famous Roumanian Note of 1902 was also con- 
sidered at some length in above-cited work«"Jewish Disabilities in the 
Balkan States" (pp. 81-82; 133 et seq.). The note was prepared at the 
special direction of President Theodore Roosevelt, and was expressly 
framed to embrace non- American victims of Roumanian persecution. 1 n 
Dr. Cyrus Adler's above-cited work, p. 54, the Note is reprinted in full 
from our "Foreign Relations" for 1902, p. 910, et seq. The following 
passages from it are particularly germane : 

^"The political disabilities of the Jews in Roumania, their exclusion 
from the public service and the learned professions, the limitations of 
their civil rights, and the imposition upon them of exceptional taxes, 
involving as they do wrongs repugnant to the moral sense of liberal 
modern peoples, are not so directly in point for my present purpose as 
the public acts which attack the inherent right of man as a breadwinner 
in the ways of agriculture and trade. The Jews are prohibited from 
owning land, or even from cultivating it as common laborers. They are 
debarred from residing in the rural districts. Many branches of petty 
trade and manual production are closed to them in the overcrowded 
cities, where they are forced to dwell and engage, against fearful odds, 
' in the desperate struggle for existence. . --.Human beings so circum- 
stanced have virtually no alternatives but submissive suffering or flight 
to some land less unfavorable to them. Removal under such conditions 
is not and cannot be the healthy, intelligent emigration of a free and 
self-reliant being. It must be, in most cases, the mere transplantation 
of an artificially produced diseased growth to a new place. . . . The 
teachings of history and the experience of our own nation show that 
the Jews possess in a high degree the mental and moral qualifications of 
conscientious citizenhood. No class of emigrants is more welcome to 
our shores when coming equipped and inspired with the high purpose 
to give the best service of heart and brain to the land they adopt of their 
own free will. But when they come as outcasts, made doubly paupers 
by physical and moral oppression in their native land, and thrown upon 
the long suffering generosity of a more-favored community, their mi- 
gration lacks the essential conditions which make alien immigration 
either acceptable or beneficial. So well is this appreciated on the Con- 
tinent that, even in the countries where anti-semitism has no foothold, 
it is difficult for these fleeing Jews to obtain any lodgment. America is 
their only goal. 

The United States offers asylum to the oppressed of all lands. But 
its sympathy with them in nowise impairs its liberty and right to weigh 
the acts of the oppressor in the light of their effects upon this country, 
and to judge accordingly. . . . 

Whether consciously and of purpose or not, these helpless people, 
burdened and spurned by their native land, are forced by the sovereign 
power of Roumania upon the charity of the United States. This Gov- 
ernment cannot be a tacit party to such an international wrong. Tt is 
constrained to protest against the treatment to which the Jews of Ron 

39 



mania are subjected, nol alone because it has unimpeachable ground to 
remonstrate against the resultant injury to itself, but in the name of 
humanity. The United States may not authoritatively appeal to the 
stipulations of the treaty of Berlin, to which it was not and cannot 
become a signatory, but it does earnestly appeal to the principles con- 
signed therein, because they are the principles of international law and 
eternal justice, advocating the broad toleration which that solemn com- 
pact enjoins, and standing ready to lend its moral support to the ful- 
fillment thereof by its co-signatories, for the act of Roumania itself has 
effectively joined the United States to them as an interested party in 
this regard." 

At the Bucharest Peace Conference, at the close of the Balkan War, 
our Minister at Bucharest on August 5th, 1913, at the direction of Secre- 
tary Bryan, suggested inclusion of a religious and civil liberty provision 
in the Peace Treaty for the protection of Jewish inhabitants of territory 
about to be transferred from Bulgaria to Roumanian sovereignty, with 
the result that appropriate declarations were made by the Roumanian 
plenipotentiary (Kohler & Wolf's "Jewish Disabilities in the Balkan 
States," pp. 91-4). 

The United States, at Secretary Root's instance, also participated in 
the Algeciras Conference of 1906, chiefly for the protection of the Jews in 
Morocco (Kohler's "Jewish Rights at International Congresses," in 
American Jewish Year Book of 1917-18, p. 155, quoting the official pro- 
tocol for April 2nd, 1906, of that Conference appearing in "Nouveau 
Recueil General de Traites, II Series, Vol. 34, Part 1, pp. 229-230). 

(7) President Theodore Roosevelt's course in connection with the 
Kishineff Massacre Petition in 1903, was outlined herein, and is described 
at length in Oscar S. Straus' "Under Four Administrations," pp. 171-3. 
In order to ensure knowledge by the Czar himself of the feelings of 
America at large about these anti-Jewish atrocities, the entire contents of 
the petition were embodied in a despatch, inquiring whether the Czar 
would receive the petition. 

(8) The controversy with Russia, resulting in the abrogation of our 
Treaty of 1832 because of discriminations against Jewish holders of 
American passports, called forth the despatches, excerpts from which 
appeared in Section 1 hereof, besides many others. Most of these were 
collated in the 261 page volume published by our Government above cited, 
entitled "Termination of the Treaty of 1832 between the United States 
and Russia — Hearing before the Committee on Foreign Affairs of the 
House of Representatives, Monday, Dec. 11th, 1911," which also includes 
statements before the Committee and the proceedings of an important 
mass-meeting at Carnegie Hall, Dec. 6th, 191 1. A related volume was pub- 
lished by the Government, which contains the Senate Hearing of the 
same month. Dr. Cyrus Adler's above-cited work conveniently reprints 
many of our state papers on the subject (pp. 73-115). In the supple- 
mentary American chapters of a work entitled "God in Freedom," by 
Luigi Luzzatti, late prime minister of Italy, the history of the abrogation 
movement was outlined by me, and a famous address in aid of it by Louis 
Marshall also appeared (pp. 705-734). It is not well known, however, 

40 



i 



that Secretary Blaine sought to initiate an avowed joint diplomatic move- 
ment with England against Russia's course, not confined to discrimin;i 
tions against American and English citizens respectively. This despatch 
does not appear in our published "Foreign Relations," probably because 
the efforts to induce England to join us were still pending when the volume 
of our "Foreign Relations" in question was published. I quote from a 
photostatic transcript in my possession of Secretary Blaine's instructions 
to James Russell Lowell, then U. S. Minister at London, dated Nov. 22nd, 
1881, the following excerpts : 

"I am well aware that the domestic enactments of a state toward its 
own subjects is not generally regarded as a fit matter for the inter- 
vention of another independent power. But when such enactments 
directly affect the liberty and property of foreigners who resort to a 
country under the supposed guarantee of treaties framed for the most 
liberal ends, when the conscience of an alien owing no allegiance what- 
ever to the local sovereignty, is brought under the harsh yoke of bigotry 
or prejudice which bows the necks of the natives, and when enlight- 
ened appeals made to humanity, to the principles of just reciprocity 
and to the advancing spirit of the age, in behalf of tolerance, are met 
with intimations of a purpose to still further burden the unhappy suf- 
ferers and so to necessarily increase the disability of foreigners of like 
creed resorting to Russia, it becomes in a high sense a moral duty to 
our citizens and to the doctrines of religious freedom we so strongly 
uphold, to seek proper protection for those citizens and tolerance for 
their creed, in foreign lands, even at the risk of criticism of the muni- 
cipal laws of other states. 

"It cannot but be inexpressibly painful to the enlightened Statesmen 
of Great Britain, as well as of America, to see a discarded prejudice of 
the dark ages gravely revived at this day, — to witness an attempt to base 
the policy of a great and sovereign state on the mistaken theory that 
thrift is a crime of which the unthrifty are the innocent victims, and 
that discontent and disaffection are to be diminished by increasing the 
causes from which they arise. No student of history need be reminded 
of the lessons taught by the persecutions of the Jews in Central Europe, 
and on the Spanish Peninsula. Then, as now in Russia, the Hebrew 
fared betterin business than his neighbor ; then, as now, his economy 
and patient industry bred capital, and capital bred envy, and envy per- 
secution, and persecution disaffection and social separation. The old 
tradition moves in its unvarying circle, — the Jews are made a people 
apart from other peoples, not of their volition, but because they have 
been repressed and ostracised by the communities in which they mixed. 
The ghetto of mediaeval times still preaches its eloquent lesson, which 
the nations have done well to heed. In Great Britain and in the U. S.. 
the Israelite is not segregated from his fellow men, a social Esau, alike 
repellent and repelled. His equal part in our social framework is un- 
challenged ; his thrift and industry add to the wealth of the state ; and 
his loyalty and patriotism are unquestionable. So, likewise, in the 
great states of Europe, until we reach the Russian frontier, the Car- 
pathian chain on the strait of Gibraltar. The Empire of the Czar, in 

41 



its treatment of native Hebrews, ranks strangely, with the Roumania 

of tlie past before the enlightened counsels of the Treaty of Berlin pre- 
vailed, and with the Morocco of the present ! 

"It was perfectly clear to the mind of the late President that an 
amelioration of the treatment of American Israelites in Russia could 
only result from a very decided betterment of the condition of the native 
Hebrews — that any steps taken toward the relief of one would necessar- 
ily react in favor of the other — and that, under the peculiar and abnor- 
mal aspects of the case, it is competent and proper to urge upon Russia 
action in consonance with the spirit of the age. To his successor in the 
Chief Magistracy, these conclusions are no less evident. And I am 
charged by the President to bring the subject to the formal attention of 
Her Brittanic Majesty's Government, in the firm belief that the com- 
munity of interests between the U. S. and England in this great ques- 
tion of civil rights and equal tolerance of creed for their respective 
citizens in foreign parts, will lead to consideration of the matter with 
a view to common action thereon. Should the views of the two Govern- 
ments be found to agree herein, it would seem, moreover, a propitious 
time to initiate a movement which might also embrace other Powers 
whose service in the work of progress is commensurate with our own, 
to the end that Russia may be beneficially influenced by their cumulative 
representations and that their several citizens and subjects visiting the 
territory of the Empire on law-observing missions of private interest, 
shall no longer find their subjection of conscience to military forms 
and procedure which obtains nowhere else in Europe. 

"You may read this despatch to Lord Granville and, if he desires it, 
leave with him a copy. You will say to him at the same time that, while 
abating no part of his intention to press upon the Russian Government 
the just claim of American citizens to less harsh treatment in the Em- 
pire by reason of their faith, the President will await with pleasure an 
opportunity for a free interchange of views upon the subject with the 
Government of Her Majesty." 
When Mr. Lowell presented this despatch to Lord Granville, the 
latter stated that "Her Majesty's Government would always be most 
happy to act in concert with that of the United States on any question 
regarding religious liberty," but ultimately, apparently for political rea- 
sons, England did not co-operate with us in tfi£ plan. 

(9) The course of President Wilson and Colonel House at the Peace 
Conference of 1919, in promoting the adoption of minority protective 
treaty clauses, including protection to religious minorities, is of course 
well known. It was my privilege to publish a detailed history of this 
movement in another one of the Supplementary Chapters of Luzzatti's 
"God in Freedom," pp. 735-794 and reprint as part thereof, an address on 
some phases of the subject by the late Louis Marshall, who played so im- 
portant a role in their adoption. Related to the same is President Wil- 
son's appointment of the so-called Morgenthau Mission, to investigate 
Polish atrocities against the Jews (Idem., p. 792). Reference is made to 
these chapters as also to the authoritative exposition of the Polish Minori- 
ties Treaty by the Allies, signed on their behalf by M. Clemenceau (Idem., 

42 






pp. 745-750). These show bow largely protection of Jewish minorities 
from violence and from civil, political and religious discrimination was 
aimed at by these treaties. Although the treaties themselves were im 
posed only on newly erected states, like Poland, it should be remembered 
that the declaration that infractions of the rights of racial, religious Of 
linguistic minorities "constitute obligations of international concern, " — 
found in the Polish Treaty, — is the statement of a general principle of 
international law. (See Polish Treaty, American Journal of Inter- 
national Law, October 1919 Supplement, pp. 423-433). As heretofore 
shown (p. 40) Secretary Hay so treated the similar clauses of the Treaty 
of Berlin. 

III. The United States, however, is not limited to general considera- 
tion of humanity and mere "intercession" in connection with Germany's 
treatment of her racial, religious or linguistic minorities, for Germany 
made express pledges to. the United States and the other Allies at the Peace 
Conference, guaranteeing protection of her own religious and racial min- 
orities equal to that established for Poland's minorities by express treaty. 
These pledges prohibit not merely physical violence to her Jewish inhabi- 
tants, but accord to them equality of civil and political rights of all kind. 
Each of the many anti-Semitic "planks" of the "National Socialist Party 
Platform" directly contravenes these pledges.* At the Peace Conference, 
Germany herself was aware, before the treaty was completed, that she 
would lose territory inhabited by Germans to Poland and other states by 
enforced cession. Accordingly, her delegates on May 29th, 1919, deliv- 
ered a written pledge to the Allies, binding herself to accord equal pro- 
tction, but asked for treaty minority protective clauses in the Polish and 
other treaties establishing new states. Her written pledge is as follows : 
(Kraus & Rodiger's "Urkunden zum Friedensvertrag von Versailles von 
28 Juni 1919," Vol. I, p. 456, translated in "International Conciliation" 
October, 1919, No. 143, p. 30, entitled "Comments by the German Dele- 
gation on the Conditions of Peace") : 

"Germany advocates in principle the protection of national minori- 
ties. The protection may be settled to the best purpose within the scope 
of the League of Nations. Germany, on her part, however, must de- 
mand such assurances as are already fixed by the peace treaty, for those 
German minorities which, by cession, will pass over into alien sovereign- 
ty. Such minorities must be afforded the possibility of cultivating their 
German characteristics, especially through permission to maintain and 
attend German schools and churches, and to publish German papers. 
A still more extensive cultural autonomy based on national registra- 
tion (Koloster) would be desirable. Germany on her part is resolved 
to treat minorities of alien origin in her territories according to the 
same principles." (See also Miller's "The Drafting of the Covenant," 
11,759). 



* (See the platform reprinted in Alfred Rosenberg: "Wesen, Grundsatze und Ziele 4er 
N. S. D. A." (1930) ; also Mildred S. Wertheimer's "The Hitler Movement in Germany" 
(Foreign Policy Information Service, and her "The Jews in the Third Reich," Oct. 11, 1933), 
See now also "The Jews in Nazi Germany," published by the "American Jewish Committee." 
(1933, pp. 39-41) and James Waterman Wise's "Swastika— The Nazi Terror" (N. Y., 
1933, pp. 39-42), quoting "Hitlerism, the Iron Fist in Germany" by Nordicus. 

43 



A few days before this was written, the draft of the minority pro- 
tective clauses of the Polish treaty had been submitted hy the Committee 
on New States of the Peace Conference to Poland, and Germany knew 
their tenor, so that this was said with express reference to such clauses, 
which Germany asked to have imposed on Poland and other new states. 
Accordingly, the Allies accepted Germany's offer, and on the one hand 
over-ruled the protests of the new states at being thus discriminated 
against, and on the other abandoned any intention to bind Germany by 
such express treaty limitations, accepting her pledge instead. This was 
in terms stated to Germany by the Allies under date of June 16th, 1919, 
officially, to the effect that they 

"are prepared to accord guarantees under the protection of the League 
of Nations for the educational, religious and cultural rights of German 
minorities transferred from the German Empire to the new States 
created by treaty. They take note of the statement of the German dele- 
gates that Germany is determined to treat foreign minorities within her 
territory according to the same principles." (Miller's "Drafting of the 
Covenant," I, 548 ; "International Conciliation," November, 1919, No. 
144 ? p. 21, quoted by me in Luzzatti's "God in Freedom," p. 773) .* 
Germany's guarantees were accepted all the more freely because she her- 
self had imposed minority protective clauses on Roumania by the Peace 
of Bucharest of May 7th, 1918, covering equality of religious, civil, and 
political rights, including the Jews specifically (Idem., pp. 773-4). 

Accordingly, Germany stands pledged to the United States and the 
other Allies to carry out all the provisions for the protection of her 
religious, racial and linguistic minorities that are contained in the Polish 
minority treaty. These include 

1 ) "full and complete protection of life and liberty to all inhabitants 
* * * without distinction of birth, nationality, language, race or 
religion," and "free exercise, whether public or private, of any 
creed, religion or belief, whose practices are not inconsistent with 
public order or public morals" (Article 2). 

2) Recognition as nationals, ipso facto and without the requirement of 
any formality of German, Austrian, Hungarian or Russian na- 
tionals habitually resident at the date of the coming into force of 
the present treaty (Article 3). 

3 ) Admission and declaration to be nationals ipso facto and without the 
requirement of any formality of persons born in said territory of 
parents habitually resident there (Article 4). 

4) Undertaking that no hindrance shall be placed in the way of the 
exercise of the right to choose nationality (Article 5), 



* See emphasis on these pledges in the "Protest" signed by 51 distinguished members 
of the New York bar, reprinted in "The Jews in Nazi Germany," pp. 93-4. The signers 
included two former U. S. Secretaries of State, Elihu Root and Bainbridge Colby, acting 
Secretary of State Polk, two former U. S. Ambassadors, John W. Davis and James W. 
Gerard, and such distinguished leaders of the American bar as Charles C. Burlingham 
Samuel Seabury, George W. Wickersham, Henry W. Taft, Charles H. Strong, Victor J. 
Dowling, Morgan J. O'Brien, James A. O'Gorman, C. E. Hughes, Jr., Joseph H. Choate, Jr., 
Ogden L. Mills, Raymond B. Fosdick, Paul D. Cravath, Charles S. Whitman, Nathan L. 
Miller and George Gordon Battle. 

44 



5) All persona born in said territory not nationals of another slate 
shall ipso facto become (German) nationals (Article (>). 

6) All nationals shall be equal before the law and shall enjoy the same 
civil and political rights without distinction as to race, language or 
religion. Difference of religion, creed or confession shall not prej- 
udice any national in matters relating to the enjoyment of civil or 
religious rights, as, for instance, admission to public employments, 
functions and honors or the exercise of professions and industries. 
No restrictions shall be imposed on the free use by any national of 
any language in private intercourse, in religion, in the press or in 
publications of any kind or at public meetings (Article 7). 

7) Nationals who belong to racial, religious or linguistic minorities 
shall enjoy the same treatment of security in law and in fact as the 
other nationals (Article 8) . 

It will be remembered that Germany successfully invoked the juris- 
diction of the World Court to enforce these very articles as against Poland 
(Advisory Opinion No. 7 of Sept. 15th, 1923). When these treaty 
clauses were being drafted, strong efforts were made to authorize the 
minorities involved themselves to bring complaints against their in- 
fracting State before the League of Nations and the World Court, but 
President Wilson (who more than any one else was responsible for their 
adoption), rejected these suggestions, stating that it would be dangerous 
and ill-advised to permit such a course, and he let enforcement rest instead 
on the complaints of other nations. He said at a conference with Louis 
Marshall and Dr. Cyrus Adler in Paris on May 26th, 1919 (to quote from 
a contemporary record of the interview, appearing in the Luzzatti book; 
pp. 784-5) : 

"The President spoke at some length on this subject, explaining that 
he thought it was not in the interest of the minorities themselves that 
they should make the appeal, and indeed they could not unless they were 
recognized as an independent corporate or legal entity, which he con- 
sidered inadvisable. As for the Jews, it seemed to him that the Jezvs 
of America and England would keep a close watch over the affairs of 
their brethren in Eastern Europe, and if there were any infractions of 
.the treaty, they would have the right to bring them to the attention of 
their government and through their governments to the League of 
Nations." 

While Germany possibly succeeded in eliminating League of Nations 
jurisdiction by giving the voluntary pledges instead,* the obligation 
created by these pledges remains, and is enforcible by our own Govern- 
ment. It is obvious that President Wilson relied chiefly upon represen- 
tation from our own Government (and England) to enforce Jewish 
minority rights. I understand it to be a fact that some of the Jews of Ger- 
many do not regard themselves as a "minority group," not even a religious 
minority, in view of the equality of rights provisions of the German Con- 



* But see to the contrary Hon. Norman Bentwich's pamphlet The League of Nation* 
and Racial Persecution in Gerjriany (London, 1933) and Rev. Sidney E. Goldstein's "The 
League of Nations and The Grounds for Action in Behalf of the Jews of Germany" (N. Y., 
1933) ; also Report of 6th Committee of League of Nations Assembly, Oct. 10, 1933. 

45 



si it ii 1 it ms of 1871 and 1919, but the present German Government treats 
them as such, and as devoid of fundamental rights, and the treaties ex- 
pressly impose obligations quite independent of any law, constitution or 
regulation of an infracting State. Under these treaties the Jews clearly 
constitute a "religious minority" in a country inhabited by a majority of 
Christians, and it was so held by the committee of legal experts whom the 
Council of the League of Nations called in for advice in the Bernheim 
case, presently to be considered. (See infra, pp. 63-4) . 

We Jews constitute a "religious minority" even in the United States, 
where constitutions accord us "equal rights." As applied to citizens, such 
racial or religious discriminations are unthinkable for the American peo- 
ple. As concerns resident aliens, too, as seen, we accord them substantial- 
ly all the civil and religious rights of citizens, though we have curtailed 
admission of aliens in order to preserve American standards of living. 
As said by President Theodore Roosevelt in a famous passage in his 
Presidential message of 1906 with respect to the Japanese School Ques- 
tion of California : "Not only must we treat all nations fairly, but we must 
treat with justice and good-will all immigrants who come here under the 
law. Whether they are Catholics or Protestants, Jew or Gentile, whether 
they come from England or Germany, Russia, Japan or Italy, matters 
nothing. All we have a right to question is the man's conduct." 

That these "pledges" are legally, and not merely morally, binding, fol- 
lows from a very recent analogous opinion of the World Court in the 
"Eastern Greenland Case," involving conflicting claims by Denmark and 
Norway, handed down April 5th, 1933, which was considered by Prof. 
James W . Garner in an editorial in the July 1933 issue of the "American 
Journal of International Law" (pp. 493-7) entitled "The International 
Binding Force of Unilateral Oral Declarations." Other similar prece- 
dents were also collated there by Prof. Garner. That case involved a 
promissory oral declaration by the Norwegian Minister of Foreign Af- 
fairs, made July 22nd, 1919, to the Danish Minister of Foreign Affairs to 
the effect that "plans of the Danish Govennment over Eastern Greenland 
would meet with no opposition on the part of Norway." The declaration 
was at once reduced to writing and initialled by the Norwegian Minister, 
but not ratified by their Parliament, nor registered with the Secretariat of 
the League. Norway conceded before the World Court the fact of the 
making of the declaration, but contended that it was merely a diplomatic 
assurance of Norway's benevolent attitude, and not a binding promise 
having the force of a treaty obligation ; also that her Minister of Foreign 
Affairs was not competent to bind his state by such declaration, that inter- 
national law attributes legal force only to those acts of a foreign minister 
which fall within his constitutional authority. The Court, however, sus- 
tained the obligatory character of this assurance, saying in the majority 
opinion : 

"The Court considers it beyond all dispute that a reply of this nature 
given by the Minister of Foreign Affairs on behalf of his Government 
in response to a request by the diplomatic representative of a foreign 
power, in regard to a question falling within his province, is binding 
upon the country to which the Minister belongs." 

46 



Judge Anzildtti's dissenting opinion turned on oilier grounds, and alio 
admitted that the declaration, although a verbal one, was a valid agree 
ment, and as such binding upon Norway, particularly since both parties 
were agreed as to its existence and tenor, and therefore no question of 
proof was involved. He thought that the question whether Norwegian 
constitutional law authorized the Foreign Minister to make the declaration 
was one which did not concern Denmark. It was M. Ihlen's duty to re- 
frain from giving his reply until he had obtained any consent that might 
be required under the Norwegian laws. If he violated those laws, that 
involved a question of national responsibility which was of no concern to 
Denmark, and had no effect upon the binding force of the Norwegian 
declaration. 

Prof. Alexander N. Sack has kindly called my attention to the fol- 
lowing additional authorities as to the binding character of such pledges : 
"Hall's International Law, 8th Edition, ed. by A. P. Biggins (1924) 
383 : 'Usage has not prescribed any necessary form of international 
contract. A valid agreement is therefore concluded as soon as one 
party has signified his intention to do or to refrain from a given act, 
conditionally upon the acceptance of his declaration of intention by the 
other party as constituting an engagement, and so soon as such accep- 
tance is clearly indicated. Between the binding form of contracts which 
barely fulfill these requirements, and of those which are couched in 
solemn form, there is no difference. From the moment that consent on 
both sides is clearly established, by whatever means it may be shown, 
a treaty exists of which the obligatory force is complete.' 

Hall, ibidem, at 385 : "Tacit ratification takes place . . . when per- 
sons . . . enter into obligations in notes or in any other way for which 
express ratification is not required by custom, without their action being 
repudiated so soon as it becomes known to the authority in fact capable 
of definitely binding the state." See also "Bluntschli, Droit Inter- 
national No. 417." 
By the Treaty between the United States and Germany, signed August 
25th, 1921 {Treaties, Conventions, International Acts, Protocols, and 
Agreements between the United States and Other Powers 1910-1923; 
Vol. Ill, p. 2596, et seq.), the United States reserved the right to enforce 
these pledges and similar rights. It was there recited and provided : 

"Considering that the United States, acting in conjunction with its 
co-belligerants, entered into an Armistice ... in order that a Treaty of 
Peace might be concluded ; 

"Considering that the Treaty of Versailles . . . came into force . . . 
but had not been ratified by the United States ; 

"Considering that the Congress of the United States passed a Joint 
Resolution, approved by the President July 2nd, 1921, which reads in 
part as follows : 

"Resolved . . . that the state of war ... is hereby declared at an end 

. ("Sec. 2.") That in making this declaration, and as a part of it, 

there are expressly reserved to the United States of America and its 

nationals any and all rights ... to which it or they have become entitled 

47 



under the term* of the armistice . . . or which, under the Treaty of 

Versailles, have been stipulated for its or their benefit ; or to which it is 

entitled as one of the Principal Allied and Associated Powers, . . . or 
otherwise . , ." 

"Art. I : Germany undertakes to accord to the United States, and 
the United States shall have and enjoy, all the rights . . . specified in 
the aforesaid Joint Resolution ..." 
In Article II of this Treaty, subd. 2, it was provided that the United 
states shall not be bound by the provisions of Part I of that Treat v 
which relate to the Covenant of the League of Nations, nor shall the 
United States be bound by any action taken by the League of Nations or 
by the Council or by the Assembly thereof, unless the United States shall 
expressly give its assent to such action." By Subd. 4 "the United States 
is privileged to participate in the Reparation Commission, . . . and in any 
other Commission established under the Treaty or under any agreement 
supplemental thereto, . . . (but) is not bound to participate many such 
commission unless it shall elect to do so." ' «*- 

Our treaty of friendship, commerce and consular rights with Germany 
of Dec 8th, 1923, proclaimed Oct. 14th, 1925 (42 U. S. Statutes at Large 
Z1SZ) also contains comprehensive religious liberty provisions. 

Stresemann in his famous speech before the German Reichstag of 
February 9th, 1926, said: s 

"We can champion the cause of German minorities abroad with full 
conviction and good conscience only, if we accord to minorities in our 
German Fatherland the same rights which we demand for Germans 
abroad. {Erlcr : "Das Recht der Minderheiten" 1931, p, 197) . 
In the official communication to the League entitled "Observations of 
the German Government regarding the Guarantees Assumed by the 
League of Nations m respect of the Provisions for the Protection of 'Min- 
orities, dated April 12th, 1929 ("League of Nations-Protection of 
Linguistic, Racial or Religious Minorities by the League of Nations- 
Resolutions and Extracts:' etc., Second Edition, March 1931 p lQQh 
it was said : ' l ' ' ' 

"The preservation of the racial characteristics of minorities, as well 
as their cultural, linguistic and religious liberties, must be assured to 
them. Responsibility for this guarantee is incumbent, in the first place 
> upon the countries to which the minorities belong. They must recoa- 
mse the safeguarding of these minority rights as a fundamental law 
the effects of which cannot be restricted by any other laws, regulations 
or official measures of any kind whatever. This fundamental law has 
moreover, been given an international character. Its observation has 
been placed under the guarantee of the highest international orqanha- 
twn the League of Nations. It is general and unrestricted. It implies 
in the first place, constant supervision over the treatment of the min- 
orities in the various signatory States, and, further, intervention in 
cases of concrete infraction of the provisions regarding the protection 
of minorities. The whole system thus defined constitutes an important 
and permanent corollary to the fact that, by the 1919 Treaties of Peace. 

48 






m 



B 




numerous poptdationi were detached from their national communities 
and placed under the sovereignty of another State." 
The distinguished German publicist, Carl Georg Bruns, published an 

interesting German paper on "Minority Rights as International Legal 
Rights" in "Zeitschrift fur Volkerrecht? Vol. XIV, Supplement II 
(1928), which is reprinted in his posthumous volume "Gcsamuicllc 
Schriften zur MinderheitenfrageT (1933, pp. 22-76), which also cm- 
tains other relevant matter; including a discussion of "StrescmanrisMtn- 
derheiten Politik (pp. 294-9) reprinted from "Nation und Stoat" III, 
No. 1, pp. 2-6 (Oct. 1929) :* In the discussion of the Bernheim petition 
before the League of Nations Council, as we will see hereafter, M. Paul- 
Boncour, the French delegate, and others, regarded Germany's pledges 
as legally binding with respect to the Jews. ( See infra, pp. 57-8) . 

The Assembly of the League of Nations, in September, 1922, adopted 
a resolution, reading (Luzzatti's "God in Freedom," p. 770) :^ 

"The Assembly expresses the hope that the States which are not 
bound by any legal obligation to the League with respect to minorities 
will nevertheless observe in the treatment of their own racial, religious, 
or linguistic minorities at least as high a standard of justice and tolera- 
tion as is required by any of the treaties and by the regular action of 
the Council." 

III. The Bernheim Upper Silesian Petition Before the 
Council of the League of Nations 

How greatly the Minorities Treaties of 1919 have made the protection 
of the rights of racial, religious or linguistic minorities a matter of inter- 
national concern, and no longer a merely internal affair of the persecuting 
state, was clearlv shown by trie-proceedings of the League of Nations 
Council in connection with the petition of Franz Bernheim, asking, rehet 
against Germany for violation of the minorities provisions of the Upper 
Silesian Treaty of May 15th, 1922, between Germany and Poland Any 
doubt as to the efficacy of those treaties, where they apply, and where a 
gross violation was involved, such as the Hitler crusade against the Jews 
of Germany, which political considerations could not ignore, was then 
manifested by the action of the Great Powers. Of course, the United 
States did not join, not being a member of the League. Not merely pro- 
tests from foreign governments, but international action to protect the 
Jews of Upper Silesia as a religious minority, whose fundamental treaty 
rights Germany had violated, in defiance of treaty, took place m that in- 
stance. 



*See also Da. Joseph Boucek's "The Minority Principle as «j P«J |* *t *£«J"j 
Science" and his article "The Problems of Minorities and the League of Nations P^^hed 
in "Journal of Comparative Legislation and International Law Third &#««£ l^rl 
Part I Feb 1933 pp. 67-76. Article XI, paragraph two of the Covenant of the League ol 
Nations provides "It is also declared to be the friendly right of each Member of the 
League to bring to the attention of the Assembly or of the Council any circumstance 
whatever affecting international relations which threatens to disturb international peace or 
the good understanding between nations upon which peace depends. See also Sir John 
Simon's address of April 13, 1933, in British "Parliamentary Debates , 5th Series, Vol. 2(6. 
p. 2807 et seq. 

49 



The incidem was so important, and so relevant to the present discus- 
sion, that I transcribe the official documents in full. * Instead of reprodu- 
cing Franz Bernheim's petition in my text, I am printing it as an Appendix 
hereto, and summarizing and analyzing it as part of the paper proper. The 
Appendix reproduces the document, as translated in full in the issue of the 
"New York Times" of May 27th, 1933. It was filed May 17th, 1933, by 
Dr. Emil Margulies of Prague, president of the Jewish party of Czecho- 
slovakia, Mr. Leo Motzkin of Paris of the Comite des Delegations Juives" 
and Dr. N. Feinberg of Geneva, author of a work entitled "La Question 
des Minorites a la Conference de la Paix de 1919-1920 et L'Action juive 
en Faveur de la Protection Internationale des, Minorites." (1929). An- 
other petition was filed simultaneously on behalf of the "Comite des Dele- 
gations Juives" and the "American Jewish Congress" and other Jewish 
organizations, signed by L. Motzkin and Dr. Emil Margulies, also relating 
to the Jews in Upper Silesia, under the same treaty, but it need not be 
further considered herein, as it was not entitled to the summary hearing 
which was invoked in the Bernheim petition, and accorded to the latter by 
the Secretary General of the League, Sir Eric Drummond, under the regu- 
lations applicable to the latter alone. Petitioner Franz Bernheim was a 
German Jewish refugee from Upper Silesia, born in Austria, who fled 
to Prague, Czechoslovakia, after having resided in Gleiwitz, German 
Upper Silesia, and been employed there from September 30th, 1931, to 
April 30th, 1933 and been discharged, together with all other Jewish 
employees, under the anti-Jewish conditions created by the Hitler regime. 

As stated, the Bernheim petition invoked the German-Polish Treaty 
concerning Upper Silesia of May 15th, 1922, also known as the Geneva 
Convention, which is to be found conveniently reprinted in League of 
Nations Publications I. B. Minorities 1927 I. B. 2, entitled "Protection of 
Linguistic, Racial and Religious Minorities by the League of Nations- 
Provisions Contained in the Various International Instruments at Present 
in Force" (1927) at pp. 64-87. Unfortunately, these provisions apply 
only to residents of Upper Silesia. The minority protective clauses of the 
treaty run from articles 65 to 158 of the Treaty, Part III (pages 64 to 87) , 
and first in terms adopt verbatim the Polish minority protective treaty in 
Division I (Articles 65 to 72) , and then carry them out even more specifi- 
cally and in greater detail in the subsequent articles. The Polish treaty « 
clauses were expounded at length by the late Louis Marshall in an address 
published in Judaean Addresses, Vol. Ill, pp. 169-182 (reprinted by me 
in the Luzzatti work), and he was their principal draftsman, in conjunc- 
tion with Judge J. W. Mack, David Hunter Miller, Manley O. Hudson and 
Lucien Wolf. They are so carefully phrased that they successfully ran 
the gauntlet of the Polish attack before the World Court in the decision 
against Poland rendered by that Court, known as Advisory Opinion No. 
7 on September 15th, 1923. They specifically forbid every possible form 
of discrimination on the score of race or religion as to public office, pro- 
fessions, trade, industry and schooling, and guarantee the minorities uni- 
form treatment with the majority. 



* I am expanding this section of my paper, by including action that took place shortly 
after it was submitted, though I outlined the importance of the case at the time. 

50 



In this Silesian Treaty, i1 is also expressly recited thai its terms "con 

Stittlte obligations of international concern" and "shall be placed under] 
the League of Nations," and that they shall he "recognized as I'linda 
mental laws" and "prevail over every German or Polish law, regulation \j 
or official action." A unique provision of the Silesian treaty is contained 
in Article 74, which provides that "the question whether a person docs or 
does not belong to a racial, linguistic or religious minority may not be veri- 
fied or disputed by the authorities." Article 80 guarantees identical 1 reat- 
ment with that accorded to other nationals "as regards the exercise of 
agricultural, commercial or industrial callings or any other calling." In 
Chapter III, embracing Articles 84 to 96 entitled "Religion," equal treat- 
ment "of all organized religions" is guaranteed, and specific reference to 
"Jewish communities" occurs in Article 86, and many other articles, 
showing unmistakably the intention to guarantee equal rights to Jews 
throughout as among the "minorities" protected. 

Article 89 expressly adopts in terms, Article XI of the Polish Minority 
Treaty as to Saturday Sabbath for Jews, and Article 91 accords them 
equitable shares of public budgets for their separate schools, should they 
choose to establish them, instead of availing themselves of absolute right 
to attend German national schools and colleges. 

Throughout, the right runs in favor of Silesian German "nationals," 
regardless of their location, and Germany could not be heard to say, there- 
fore, that, after making it unsafe for Bernheim to remain in Germany, 
even before he jeopardized his life still more by filing this complaint, he 
has no longer any status in Czecho-Slovakia, to file this complaint. This 
point is very similar to the precedent I secured from the U. S. Supreme 
Court in Tod vs. Waldman, 266 U. S. 113, where the victim of the 
Ukrainian pogrom involved was held entitled under analogous language 
to invoke the "religious refugee" exception of our Immigration Literary 
Test though she had sojourned for 17 months thereafter in other coun- 
tries before being enabled to get passage to the United States. 

Some confusion has arisen in several quarters as to whether German 
Jews under the discarded German Constitution were even a "religious" 
minority, because that instrument (before it was set aside by Hitler), 
gave equal rights to German Jewish citizens. The very theory of these 
minorities' treaties, however, is that "no law, regulation or official action" 
of any infracting state can deprive any one belonging to a religious min- 
ority,^ defined in the treaty, of his rights under those treaties, which 
must prevail over any national law, constitution or otherwise. Prac- 
tically every step in Northern Silesia in the Hitler anti-Jewish crusade is 
a gross violation of this treaty. 

It is understood that Benes, distinguished Czecho-Slovakian states- 
man, espoused the cause of Mr. Bernheim. His chief, Masaryk, lived in 
our country for years, and is thoroughly imbued with our American prin- 
ciple of religious liberty. Moreover, thousands of Jewish refugees have 
already fled to Czecho-Slovakia from Germany, and serious problems will 
arise as to their maintenance there, if the Hitler programme is continued 
in force in Germany, and still further swells their number, an argument 
Secretary Hay employed in his famous Rumanian Note. 



51 



To recur, however, to the proceedings before the League of Nations 
Council, the official minutes as far as relevant, speak for themselves, and 
before quoting them in full, it is merely necessary to point out' that 
shortly prior to May 26th, Mr. Lester, delegate of the Irish Free State, 
had been selected by the Council to report to it on the Bernheim petition.' 

LEAGUE OF NATIONS 
Seventy-third Session of the Council 
MINUTES 
Fourth Meeting (Private, Then Public) 
Held on Friday, May 26th, 193 3, at 10:30 A. M. 
President: M. Castillo Najera. 
The Members of the Council were represented as follows : 
United Kingdom of Great Britain & Northern Ireland : Mr. Eden 
China : M. Wellington Koo. Czechoslovakia : M. Benes ; later M. Osuskv 
France : M. Paul-Boncour. Germany : M. von Keller. Guatemala • M 
Matos. Irish Free State : Mr. Lester. Italy : M. Biancheri. Mexico : M. 
Castillo Najera. Norway: M. Mowinckel. Panama: M. Amador Po- 
land : Count Raczynski. Spain : M. de Zulueta. 

3281. Protection of Minorities: Application of the German-Polish 
Convention of May 15th, 1922, relating to Upper Silesia : Petition of M 
Bernheim, dated May 12th, 1933, concerning the Situation of the Jewish 
Minority in German Upper Silesia : Inclusion of this Item in the Agenda 
of the Session. 

M. von Keller said that, in view of the short period available, he had 
been unable to conclude the necessary enquiries to establish whether the 
petitioner was or was not competent to submit a petition under Article 
147 of the Geneva Convention. In order that the examination of this 
petition should not be delayed, however, M. von Keller felt he should 
withdraw his opposition to the insertion of that question on the agenda 
on the understanding that when the matter was being considered an 
enquiry would be made into M. Bernheim's qualifications to submit the 
petition. 

The President decided, as a result of the German representative's 
statement, to place the question on the agenda of the public meeting. 

Fifth Meeting (Private, Then Public) 
Held on Saturday, May 27th, 1933, at 10:30 A. M. 

The Members of the Council were represented as above, with the fol- 
lowing exceptions : Czechoslovakia : M. Osusky in place of M Benes 
Norway : M. Lange in place of M. Mowinckel. 

Secretary-General : Sir Eric Drummond. 

3290. Protection of Minorities : Application of the German-Polish 
Convention of May 1 5th, 1922, relating to Upper Silesia : Petition of M. 

52 



Bernheim, dated M;iv 12th, L933, concerning the Situation <»i" the Jewish 
Minority in German Upper Silesia. 

Mr. Lester regretted that he would not, as he had hoped, be able to 
present a report on the petition of M. Bernheim that morning, bul sin 
cerely hoped to be in a position to do so on Monday morning. 

The President said that, in view of the Rapporteur's observations, 
the discussion of this question would be adjourned until Monday. 

(The Council went into public session). 
3291. Protection of Minorities: Application of the German-Polish 
Convention of May 15th, 1922, relating to Upper Silesia : Petition of M. 
Bernheim, dated May 12th, 1933, concerning the Situation of the Jewish 
Minority in German Upper Silesia. 

The President said that, at the private meeting which had just taken 
place, the Rapporteur had informed the Council that his report was not 
yet ready owing to the great difficulties raised by the question. The 
discussion was therefore adjourned till the following Monday. 



Sixth Meeting (Public) 
Held on Tuesday, May 30th, 1933, at 10 A. M. 

President : M. Biancheri. 
The Members of the Council were represented as at the Fifth Meeting, 
with the following exceptions : 

Mexico: M. Castillo Najero was absent. 

Secretary-General: Sir Eric Drummond. 
3294. Protection of Minorities : Application of the German-Polish 
Convention of May 15th. 1922. relating to Upper Silesia : Petition of M. 
Bernheim, dated May 12th, 1933, concerning the Situation of the Jewish 
Minority in German Upper Silesia. 

Mr. Lester presented the following report: I * 

"I. The petition we have to consider submits to the Council the 
question whether the application of a number of laws and administra- 
tive orders in the territory of Upper Silesia is compatible with the pro- 
visions of the third part of the Geneva Convention relating to Upper 
Silesia. The laws and orders in question, to which the petition contains 
specific references, concern, in particular, the status of civil servants, 
the position of lawyers, notaries and doctors, and the schools and uni- 
versities. It is a fair generalization that these laws and orders involve 
restrictions in various forms which would apply to persons belonging 
to the Jewish population. One of the laws, that dealing with schools 
and universities, contains a clause to the effect that 'obligations incurred 
by Germany under international treaties are not affected by the pro- 
visions of the present law.' The petition refers, without mentioning 
any actual cases, to the boycott of Jewish shops, lawyers, doctors, etc., 



* I Document C. 351. 1933. I. 



53 



and the failure of the authorities rind officials to protect the Jewish pop- 
ulation, who, it is alleged, have thus been officially outlawed. 

"I should like to recall the fact that, when this question was placed 
on our agenda, the German Government made reservations as to the 
petitioner's right to submit this petition to the Council under Article 
147 of the Geneva Convention, 

"II. The mere perusal of the laws and administrative orders men- 
tioned in the petition, the texts of which are appended to it, shows that, 
m so far as some, at any rate, of their stipulations may have been 
applied in the territory of Upper Silesia, this application cannot have 
taken place without conflicting with a number of clauses of the third 
part of the Geneva Convention. 

"III. It should be remarked, however, that, in the statement made 
by the German representative to the Council on May 26th, 1933, it is 
most plainly and categorically affirmed that internal legislation can in no 
case affect the fulfillment of international obligations, which I think 
may be taken to mean that the German Government is resolved to see 
that the provisions of the third part of the Geneva Convention are ob- 
served in Upper Silesia. Indeed, the German representative added 
that, if any infringements of the Convention had taken place, they were 
to be regarded as errors due to misconstructions of the internal laws 
by subordinate authorities. This statement implies, on the one hand, 
that the German Government will take steps to ensure that the general 
laws and administrative orders shall not be applied in Upper Silesia 
so far as they are incompatible with the provisions of the third part of 
the Convention, and, on the other, that persons who, because they be- 
long to the minority, have lost their employment or found themselves 
unable to practise their trade or profession in consequence of the appli- 
cation of these laws will be reinstated in their normal position without 
delay. _ The Council would, I am sure, be glad if the German Govern- 
ment, in accordance with the principle which has been followed in the 
past, and to the maintenance of which the Council attaches great im- 
portance, whereby the Council or the Rapporteur has been kept in- 
formed of developments, would keep me informed in my capacity of 
Rapporteur of the decisions and measures it may think fit to take in 
this connection. I propose that the Council take note of these declara- 
tions by the German Government in the conviction that the latter has 
done and will do everything necessary to ensure that the provisions of 
the Geneva Convention regarding the protection of minorities shall 
be fully respected. 

'TV. It only remains for me to deal with the point concerning the 
damage that may have been sustained in consequence of the applica- 
tion of these laws and orders in Upper Silesia by persons belonging to 
the Jewish minority and, in particular, by the petitioner himself In 
this connection, I would remind the Council that these cases may be 
investigated under the local procedure. I would therefore suggest that 
the Council request the German Government to arrange for the peti- 
tioner's case to be submitted to that procedure forthwith." 

54 



i\l. von ECbllsi regretted he wai compelled to state, on behali oi 
his Government, thai il was not in a position to accept the Rapporteur's 

report. 

Referring generally to the reservation he had made at the last pri- 
vate meeting with regard to the petitioner's qualifications to bring the 
matter before the Council, M. von Keller desired to add the following. 
The Bernheim petition itself showed that the petitioner was not con- 
nected with Upper Silesia by any ties either of origin or family. Only 
from a comparatively recent date had he been employed in a businiess 
house in Upper Silesia. Even admitting that, owing to alleged per- 
sonal injustice suffered by him in Upper Silesia, the petitioner was en- 
titled to claim for himself the rights conferred by Article 147 of the 
Geneva Convention, he had no right whatever to submit a petition on 
general questions and on the application of the German laws in Upper 
Silesia, seeing that these laws did not in any way affect him. He had 
no claim whatever, either from the point of view of birth or of his 
condition of life, to be regarded as the qualified representative of the 
general interests of the Upper Silesian population. He was neither 
an official, nor a lawyer, nor a. doctor, nor the father of children attend- 
ing schools. Moreover, apart from the absence of any right on the 
part of the petitioner, a petition of that kind was not admissible because 
no definitive de facto situation had yet arisen in Upper Silesia as to 
the application of these laws. 

Although the matter could not regularly be brought before the 
Council, and the German Government was consequently not bound to 
express an opinion on the substance of the question, it had, onits own 
initiative for political reasons with a view to preventing any misunder- 
standing, made the declaration of which the Council was aware — name- 
ly, that the internal German legislation could not in any way affect 
international conventions concluded by the Reich, and that, if any in- 
fringements of the Geneva Convention had taken place in German 
Upper Silesia, they must be regarded as errors due to misconstructions 
of the internal laws by subordinate authorities. The report presented to 
the Council did not take account of this situation of law and of fact, 
since it raised the question of the application of the laws in question in 
Upper Silesia and deduced therefrom certain conclusions and material 
demands. 

Obviously, the German Government maintained its declaration, but 
it considered that the Council should have been content to take note of 
that declaration and to state that, in so far as its general aspects were 
concerned, the petition was disposed of. With regard to the personal 
aspect of the Bernheim petition, it had not been sufficiently clearly 
ascertained whether or not the petitioner belonged to a minority. The 
German Government had already opened the necessary enquiry and 
would, if necessary, be prepared to settle the affair by the local pro- 
cedure, in accordance with the provisions of the Convention. 

The President noted that the German representative's declaration 
appeared to contain two reservations. One was a special reservation : 
Was M. Bernheim entitled to submit a petition? The other was of a 



55 



wider character : Was M. Bernheim entitled to raiie a general queition ? 
I tie President asked whether the Rapporteur had any proposals to 

make m this connection. 

Mr. Lester said that the representative of Germany had, in his 
declaration, raised two previous questions concerning the interpreta- 
tion of Article 147 of the Geneva Convention relating to Upper Silesia 
i • uu m ° ment ' therefore, he would leave aside all the other points 
which the German representative had raised, though he must not of 
course, he held to agree with them in any way. The first of the previous 
questions raised was whether the petitioner could be considered under 
the terms of Article 147, as a person "belonging to a minority"; the 
second was whether, in the affirmative, he had the right, according to 
that same article, to submit to the Council the petition now before it 
Mr. Lester would be grateful, therefore, if the Council would author- 
ize him to obtain the opinion of a Committee of Jurists on these two 
points, in order to enable him either to maintain his report as it stood 
or to propose to the Council any necessary changes. With regard to 
the composition of the Committee of Jurists, he recalled to the Council 
that a few days previously it had adopted an opinion, which also con- 
cerned the interpretation of Article 147 of the Geneva Convention 
a/t ^° pi T 1 T 0n WaS drawn up by a Com mittee of Jurists composed of 
i i u Huber ' M - B ourquin and M. Pedroso. It would seem desir- 
able that, as the Committee had already been constituted and had 
studied the article m a special way, the Council should submit the re- 
quest to these three eminent jurists and ask them to form the Com- 
mittee the appointment of which Mr. Lester had proposed. He trusted 
that the Committee would be able to report to the Council at a com- 
paratively early date, but obviously it would require reasonable time to 
consider the matter. He therefore ventured to propose that the session 
should not be declared closed that morning, but that the Council should 
meet again, m not less than seven days and not more than fifteen in 
order that the matter might be settled definitely. 

Mr Eden endorsed the course of action proposed by the Rappor- 
teur, which, indeed, seemed the best course that could be taken in the 
present circumstances. He agreed that it was desirable to clear up the 
legal difficulties which persisted, and no doubt the sooner that could be 
achieved, the better it would be for all concerned. He had only one 
further observation to add— namely, that, if he did not seek to contro- 
vert some of the arguments brought forward by his German colleague 
it must not be held that he endorsed them, for that was far from being 
the case. b 

i U u f aul-Boncour supported the proposals of the Rapporteur 
who had shown an earnest desire to be quite objective and impartial 
throughout the matter. As a legal question of receivability had been 
raised, it was natural that it should be settled, or at least that the Coun- 
cil should settle it, only after taking the opinion of a Committee of 
jurists the composition and competence of the proposed Committee 
were plainly such as to give every guarantee to the Members of the 
Council. M. Paul-Boncour regretted, however, that the period sug- 

56 



gerted was. in his opinion, somewhal too long. Public ill will, which 

the League Oi Nations had to face, like any other institution and even 
a little more than other institutions, was only too ready to accuse it of 
undue delay and procrastination. The Committee of Jurists, composed 
as it was of eminent persons who had already studied the interpretation 
of Article 147, would appear to M. Paul-Boncour to be in a position to 
give a very well-grounded opinion in a shorter time. He hoped the 
period required would be shorter because all the Members of the Coun- 
cil were in reality faced with a very grave problem. He had too great 
a respect for League procedure to desire this problem to be dealt with 
outside the special limited case of Upper Silesia at present under dis- 
cussion. He would not be completely frank with himself, however, nor 
with the Council, if he did not say that, all the same, this particular case 
was only one aspect of a more general and more moving problem, and 
that the League of Nations, which had shown such legitimate anxiety 
for the rights of minorities belonging to nationalities living within 
other frontiers, could not really ignore the rights of a race scattered 
throughout all countries. He ventured to point out that, in making this 
observation, the representative of France remained faithful to a very 
ancient tradition of his country. It must never be forgotten that France 
had been the first, in her own internal arrangements, in the national 
sphere, to emancipate the Jews even before the Revolution and during 
the ministry of Turgot, and that it was she who had first placed the 
problem on an international plane. In 1878, at the Congress of Berlin, 
when new nations, new countries, were being brought into existence — 
Serbia, Roumania and Bulgaria — France, faithful to another of her 
traditions, supported the revival of these nations and stipulated, as a 
counterpart, that the Jews should be given equality of rights. The 
friendship which then and now bound her to these countries had never 
been weakened because of the condition on which she had then insisted. 
M. Paul-Boncour 's statement was animated by the same spirit. It could 
not be less firm ; he was convinced, moreover, that there was no dis- 
agreement on this point between him and the representative of Ger- 
many. In the discussions on the Peace Treaties, Germany had desired 
the minority treaties. She had at the same time insisted very strongly — 
and her attitude was deserving of appreciation — that she would herself, 
in her own territory, ensure respect for the rights of minorities. This 
she very properly desired to see embodied in the treaties in regard to 
other States. It seemed to M. Paul-Boncour that there could really be 
no difference of opinion on the substance of the matter among' the 
Members of the Council, and it was for that reason that he earnestly 
hoped the League of Nations would be able to make its views known 
within a short time. 

Count Raczynski desired to make a short declaration on behalf of 
his Government, both as a Member of the Council and as a signatory, 
with Germany, of the Convention on Upper Silesia. In the first place, 
he asked the Council to authorize him, if necessary, to submit certain 
observations to the Committee of Jurists who would examine the mat- 
ter. He also hoped, and here he supported the declarations of the repre- 



57 



sentatives of the United Kingdom and France, that the question would 
soon be cleared up, and that the Committee of Jurists would be able to 
submit a report within a short time. 

Count Raczynski had then to point out that the German representa- 
tive had to some extent abandoned the position which representatives of 
Germany had hitherto taken up. Indeed, they had endeavored to give as 
wide an interpretation as possible to the texts relating to the protection 
of minorities. There was now a difference. He knew very well that, 
from the point of view of formal law, the Council could deal only with 
the position of the Jewish minority in Upper Silesia. All the Members 
of the Council had, however, at least a moral right to make a pressing 
appeal to the German Government to ensure equal treatment for all the 
Jews in Germany. The representative of Poland thought this moral 
right followed from the declaration made by the German delegation at 
the Peace Conference on May 29th, 1919, of which the Allied and Asso- 
ciated Powers had taken note on June 16th, 1919, and which the repre- 
sentative of France had mentioned. Count Raczynski also desired to 
call attention to the resolution adopted by the Assembly of the League 
of Nations on September 22nd, 1922, when the Assembly expressed the 
hope "that the States which are not bound by any legal obligation to the 
League with respect to minorities will nevertheless observe in the treat- 
ment of their own racial, religious or linguistic minorities at least as 
high a standard of justice and toleration as is required by any of the 
treaties and by the regular action of the Council." He expressed the 
hope that the German Government would not refuse to take account of 
the recommendation contained in that resolution, for Germany, since 
her entry into the League of Nations, had always claimed proudly that 
she was the champion of racial, religious and linguistic minorities. He 
could not, moreover, forget the statements which the official represen- 
tatives of the German Government had made at Geneva. In those state- 
ments—Count Raczynski was thinking of the statements of M. Cur- 
tius on September 22nd, 1930, and M. von Rosenberg on October 6th, 
P932 — the German Government had recognized the value of making the 
protection of minorities general, and had even declared its readiness to 
participate actively in doing so. The affair at present before the Coun- 
cil would doubtless cause the Members of the Council to reflect on the 
minority problem in general. The striking example of the Jewish 
minority in Germany, which had legal protection only in a small portion 
of German territory, must doubtless lead to the conclusion that the 
present system for the protection of minorities had all the defects of an 
inadequate system. It must appear to all States with minority under- 
takings, especially at a moment like the present, when the^ urgent need 
for the protection of minorities was felt elsewhere than in their own 
countries, as an unequal system, clearly contrary to the principle of the 
equality of States. To public opinion, the system must appear to be 
incomplete and to contain serious gaps, owing to the very fact that it 
included only certain arbitrarily selected States. There were minori- 
ties everywhere. Who, therefore, was to guarantee that, owing to the 
evolution of public affairs in a particular country having no minority 

58 



obligations, the minorities living there would never have cause in com 
plain of unequal treatment. A minimum of rights nmsl be guaranteed 
to every human being, whatever bis race, religion or mother tongue. 
That minimum must be independent of the effects of changes in public 
life which it was impossible to foresee. The Polish representative 
therefore made an earnest appeal to all his colleagues on the Council 
to reflect on this serious question, the urgency and importance of which 
were brought out very clearly in the unfortunate affair before the Coun- 
cil, In Count Raczynski's opinion, the next Assembly should, during 
its debates, go fully into a problem, the discussion of which appeared 
necessary to the conscience of all nations and all statesmen. 

M. de Zulueta said that he believed he could express an entirely 
objective opinion on the question. Spain had no national or political 
interest in the problem before the Council. What interested Spain in 
the present case, as in any similar case that might arise in any country 
whatsoever, was the affirmation of the principles and methods which 
the League represented. From that point of view, the representative 
of Spain thought it of the highest importance that the system for the 
protection of minorities should be applied integrally, and was con- 
vinced that it was of advantage to all that these stipulations should be 
scrupulously observed. Whenever a question of that kind was raised 
before the Council, whatever country it concerned and whatever might 
be the international position of the problem in each case, Spain would 
always be in favor of the strict fulfillment of conventions and complete 
adherence to the rules of the League of Nations. In that spirit, which 
so clearly animated Mr. Lester's document, M. de Zulueta declared, in 
the first place, that he accepted the report of the representative of the 
Irish Free State. He did not wish to enter into general considerations, 
and would confine himself to an example from his own country. Spain, 
with that wisdom which one learned in the hard school of experience, 
today viewed with deep sympathy and to some extent with maternal in- 
terest those thousands of families who, in centuries past, had been 
obliged to leave Spanish territory, and who, in several countries and 
territories of the Levant, still spoke the Spanish tongue and carried on 
the traditions and preserved the memory of the country of their fore- 
fathers. With regard to the previous question raised by the German 
representative, M. de Zulueta also approved the Rapporteur's sugges- 
tion that a Committee of Jurists should make a rapid study of the 
question. 

M. Lange said that he would have voted for the adoption of the 
report as presented that day by the Rapporteur. He would reserve his 
right, when it again came before the Council, to make certain obser- 
vations on some of its points. The Council had now before it a previous 
legal question, and it was obvious that, in accordance with its practice, 
the Council would agree and would desire that this previous question 
should be elucidated. M. Lange supported the observations made in 
this connection by the representative of FYance, and expressed, as he 
had done, the desire that the period, which really seemed very long, 
should be shortened. A general debate, very wide in scope, had some- 



59 



wliai unexpectedly arisen out of the discussion, which should have been 
confined to procedure. M. Lange felt, therefore, that, as the represen- 
tative of a country which, both in the Council and in the Assembly, had 
always shown a very keen interest in minority questions, he should say 
a few words. Norway was interested in questions relating to the pro- 
tection of minorities, because their protection was one of the duties of 
the League, not only a duty imposed upon it by certain treaties, but 
also a moral duty ; for the protection of minorities followed from cer- 
tain principles of justice which were dear to Norway. In the present 
case, not only had certain sections of people who might be in a more 
or less inferior position to be protected. The development of these min- 
orities, the assurance that they would receive equal treatment in the 
State and among the people with whom they found themselves, was a 
positive and fruitful element in the life of the nation itself. It would 
perhaps be said that Norway showed excessive idealism in this con- 
nection, but she felt very strongly that the diversity of development 
within a nation was a source of wealth which must not only be increased, 
if possible, but must be encouraged by all the means at the disposal of 
the League of Nations. M. Lange concluded by stating that no nation 
could argue that these were exclusively internal questions. At the 
present time, there were no purely internal questions. Any problem 
that arose in a country might have, and in most cases had, such effects 
outside the country as to make of it an international problem. It was 
one of the elementary duties of the League never to forget that aspect 
of the question. 

M. Matos said that he also would have voted for the report and 
fully concurred in the Rapporteur's proposals, with the same reserva- 
tions — namely, that the proposal did not in any way imply that he ac- 
cepted the point of view and arguments of the German representative. 

M. Osusky said that, as the representative of a country in which 
the system of the protection of minorities was in force, he would have 
an opportunity to explain the views of his Government as to the prin- 
ciples and ideas raised by the case before the Council and the lessons 
that could be learned from it. M. Osusky concluded from the obser- 
vations he had heard that morning that a civilized community of nations 
like the League could not disregard the claims of justice, not only 
international justice, but justice itself. Life continually taught that it 
was never either useless or premature to organize the defence of justice 
among men or among nations. As for the time being, the Council had 
to deal with a previous question raised by the German representative, 
M. Osusky would confine himself to expressing his entire approval of 
the observations of the United Kingdom representative. Like the rep- 
resentative of France, he believed it was highly desirable that the period 
within which the Council must be in a position to take a decision should 
be as short as possible. 

Mr. Lester said it was quite clear that his colleagues would prefer 
that there should be no minimum time within which the Council should 
meet, as he had at first suggested. He willingly agreed and would pro- 
pose that the delay should be shortened as far as possible. It was quite 

60 



clear that a tittle time might be necessary, especially as the Council 
would probably agree that any views which the two Government partiei 

to the Convention might care to submit should be transmitted to the 
Committee of Jurists. Mr. Lester suggested that the Secretary-* ieneral 
should distribute the report of the Committee immediately it was re- 
ceived and that the Council should agree to meet within forty-eight 
hours of that date. 

M. von Keller said that he had listened with the greatest attention 
to the statements of the various members of the Council. In the first 
place, he retained from those statements certain expressions and refer 
ences which might be interpreted as indicating that the discussion could 
be extended to a wider field than that covered by the particular ease 
before the Council. He did not desire to examine in detail the various 
remarks that had been made. But he ventured to state, in order to 
prevent any misunderstanding, that the discussion at the Council table 
must be limited to the situation existing in Upper Silesia and must in no 
way exceed the Council's competence. For the same reason, he did not 
desire to enter into the question whether the Jewish population in Ger- 
many had or had not the character of a minority. Speaking generally, 
he desired to point out that Germany had voluntarily extended very 
ample rights to the minorities living in her territory. The Council knew 
that the practical application of those rights had never given rise to 
justified complaints. 

With regard to the obligations assumed by Germany under tin- 
Geneva Convention, the Council was aware of the declaration in which 
he had explained the German Government's attitude in the matter. That 
declaration was clear and definite, and he could not admit that there- 
could be any doubt as to its meaning. M. von Keller unreservedly sup- 
ported the general observations as to the importance of the protection 
of minorities. The Council knew that Germany had always, and would 
always, take great interest in the practical application of the protection 
of minorities as guaranteed by international conventions. M. von 
Keller was, however, compelled to emphasize that fact because, if a 
fair idea of the problem were to be obtained, it must be placed in the 
right perspective. He meant that account must be taken of the condi- 
tion of life of the European minorities as a whole, as these had hitherto 
been dealt with by the League. Recently, the principles of morals and 
of civilization had been put forward in certain circles with an emphasis 
which had never been attached to them in other cases in which minority 
affairs had been discussed. M. von Keller drew attention to the large 
number of complaints presented to the League of Nations by the Euro- 
pean minorities, in cases in which those minorities had not received 
justice in the conditions promised to them in accordance with specific 
conventions for the protection of minorities. If in those cases the desire 
for justice had been as frankly and eloquently expressed as at the pres- 
ent time, the League, as the guarantor of the minority treaties, would 
perhaps have been less criticised from the point of view of the execu- 
tion and safeguarding of the protection of minorities. M. von Keller, 
however, did not desire to turn to the past. He would prefer to see in 



61 



the words <>i" his colleagues an assurance for the future application and 

extension of the protection of minorities. He interpreted them as an 
expression of the desire of his colleagues also to contribute, in general, 
to the complete execution of the existing treaties for the protection of 
minorities. If that were so, the German representative thought his col- 
leagues would have made a valuable contribution towards the cause of 
European solidarity. With regard to the proposal to consult a Com- 
mittee of Jurists as to the petitioner's right to bring his petition before 
the Council, there was no reason for such a body to consider the matter, 
as it could be dealt with under the local procedure. As regards the 
general questions raised in the petition, M. von Keller did not think it 
necessary that the Council should make a further examination, in view 
of the German Government's declaration to which he had just referred. 
In the circumstances, he would abstain from voting on the Rapporteur's 
proposal. 

M. Lester presumed it was understood that the two questions set 
out in his earlier statement would be submitted to the Committee of 
Jurists. The German representative would understand that, as Rap- 
porteur for minority questions on the Council, Mr. Lester could not 
accept any suggestion that the Council had not done its duty in the past, 
and was sure all the Members were in agreement with him that the 
Council would also in the future, in this case, as in all other cases, do 
its duty. His colleagues would all recall the words of a distinguished 
President of the Council that the protection of minorities was a sacred 
duty of the Council. As far as the Rapporteur and the Members of 
the Council were concerned, he believed that duty would be faithfully 
carried out. 

The Rapporteur's Proposals were adopted. 

3288. Protection of Minorities: Application of the German-Polish 
Convention of May 15th, 1922, relating to Upper Silesia. 

D. Petition of M. Franz Bernheim, dated May 12th, 1933, concerning 
the situation of the Jewish Minority in German Upper Silesia. 

M. von Keller said that he had immediately communicated to his 
Government the Bernheim petition submitted a few days previously. 
The German Government had authorized him to make the following 
declaration : It is obvious that international Conventions concluded by 
Germany cannot be affected by internal German legislation. Should 
the provisions of the Geneva Convention have been violated in German 
Upper Silesia, this can only be due to mistakes on the part of subordi- 
nate organs acting under a mistaken interpretation of the laws. 

Mr. Lester noted the German representative's statement, and said 
that, in accordance with precedent, he would like time to consider that 
statement. He was sure his colleagues were in the same position as 
himself. He hoped, however, to be able to present his report during 
the present session of the Council. 



62 






The Council decided i<> adjourn ibis question to a later meeting. 

C. 366. 1933. 1 

June 2nd, 1933 
PROTECTION OF MINORITIES 
Note by the Secretary-General 

The Secretary-General has the honour to communicate to the ( "<uni 
cil the text of the legal opinion drawn up by a Committee of Jurists, a mi 
posed of M. Max Huber (President), M. Bourquin and M. Pedroso. in 
accordance with the resolution adopted by the Council on May 30th, 1933. 

OPINION OF THE COMMITTEE OF JURISTS 

The question put by the Council of the League of Nations to the 
undersigned on May 30th, 1933, refers to the petition dated May 12th, 
1933, addressed to the Council by M. Franz Bernheim on the basis of 
Article 147 of the Convention relating to Upper Silesia. 

This question is whether, with a view to determining the Council's 
incompetence to take a decision on the said, petition, it can be validly 
argued : 

1. that the petitioner does not belong to the minority, because he has 
no sufficient connections with Upper Silesia ; 

2. (a) that the petitioner has not himself suffered from the laws and 
other enactments to which he calls attention as contrary to Articles 66, 67, 
75, 80 and 83 of the Convention ; 

(b) that the enforcement of those laws has not yet given rise to a 
permanent de facto situation in Upper Silesia. 

For the reasons hereinafter set out, the undersigned feel bound to 
reply in the negative to the questions put to them. 

1. 

It appears from the petition that the person above named is a German 
national of Jewish origin ; that, at the time when the provisions referred to 
in the petition were enacted, he was at Gleiwitz, in Upper Silesia ; that he 
was domiciled in that town and resided there from September 30th, 1931, 
to April 30th, 1933, as an employee in the local branch of the Deutsches 
Familien-Kaufhaus ; and that he is now temporarily staying at Prague. 

If these facts are correct — and they have not been disputed — the 
undersigned conclude that M. Franz Bernheim must be regarded legally 
as belonging to a minority within the meaning of Article 147 of the 
Convention. 

The provisions referred to in the petition establish discriminations 
against the non-Aryan section of the population and, as far as Upper 
Silesia is concerned, therefore related to racial minorities within the 
meaning of the Convention. Monsieur Bernheim, being of non-Aryan 
origin, belongs to one of these minorities. 

There is no provision in Part III of the Convention to justify the con- 
clusion that a German petitioner must either have been domiciled in the 

63 



plebiscite area for a certain minimum period, or have connections will) it 
of a specific nature, such as origin or family ties, or possess the nation- 
ality of the State of Prussia. 

The fact that at the time of presenting the petition the petitioner was 
not in the plebiscite area does not deprive him of the right conferred upon 
him by Article 147, at all events in the circumstances of the case as re- 
vealed by the petition and referred to above. 

2. 

(a) Article 147 lays down that the Council is competent to pronounce 
on all individual or collective petitions relating to the provisions of Part 
III of the Convention and directly addressed to it by members of minori- 
ties. 

The text is general : it covers all petitions, without any restrictions 
other than those that may be established by Part III of the Convention. 

But we find nothing in Article 147 or in Part III to justify the removal 
of petitions from the Council's jurisdiction on the ground that the 
measures to which they relate have not affected the petitioners themselves. 
The only interest the petitioners are required to have is that resulting 
from their being actually members of a minority. 

(b) Again, there is nothing in Article 147 or in the other provisions 
of Part III that makes it possible to contest validly the competence of the 
Council to deal with a petition complaining of laws and regulations, the 
enforcement of which has not yet given rise to a permanent de facto 
situation. 

On the contrary, it results from Part III of the Convention (Article 
67, paragraph 1 ; 68; and 75, paragraph 1) that the intention was that all 
nationals of the State should be equal before the law, and that that equality 
should exist both in law and in fact. Nor is any distinction permitted 
according to whether the de facto situation is permanent or not. Hence 
the right of petitioner may be exercised even thought it be still possible 
to secure redress at the hands of the national authorities for the action 
complained of. 

(signed) Max Huber 
(signed) M. Bourquin 
(signed) M. Pedroso 

Seventh Meeting (Public) 
Held on Tuesday, June 6th, 1933, at 10:30 A. M. 

President : M. Castillo Najera. 

The Members of the Council were represented as follows: United 
Kingdom of Great Britain & Northern Ireland : Mr. Eden ; China : M. 
Wunsz-King; Czecho-Slovakia : M. Osusky; France: M. Massigli; Ger- 
many: M. von Keller; Guatemala: M. Matos; Irish Free State': Mr. 
Lester; Italy: M. Biancheri ; Mexico: M. Castillo Najera; Norway: M. 
Lange; Panama: M. Amador; Poland: Count Raczynski ; Spain: M. 
de Madariaga. 

64 



Secretary-General: Sib Eric Drummond. 

3297 '. Protection of Minorities: Application of the German-Polish 

Convention of May 15th, 1922, relating to Upper Silesia: Petition of M. 
Bernheim, dated May 12th, 1933, concerning the Situation of the Jewish 
Minority in German Upper Silesia (continuation). 

Mr. Lester presumed that, as the report of the Committee of Jur- 
ists (1) had been circulated, the Council would merely take note of it 
and would then proceed to the consideration of his original report on 
the petition. 

M. von Keller said that the views expressed in the Opinion which 
the Committee of Jurists had submitted to the Council differed funda- 
mentally from the views M. von Keller had put forward during the 
discussions in the Council. Indeed, if the conclusions set out in the 
Opinion were accepted in their entirety, this could in a sense be regarded 
as dismissing the objections he had advanced against the adoption of 
the report at the preceding meeting. With all respect for the great 
ability of the three eminent jurists, the German representative must say 
quite frankly that their arguments had not convinced him. For he 
found himself in the difficulty that the arguments he had placed before 
the Committee did not, in his view seem to be dealt with in sufficient 
detail in the Opinion in question. For that reason, M. von Keller was 
unable to adopt a positive attitude. At the same time, although he was 
not convinced, he would pay a tribute to the work of the three eminent 
jurists, and would conform loyally to the excellent tradition that the 
opinion of the impartial experts to whom the Council thought fit to 
entrust the examination of disputed legal problems must be taken into 
account. For the above reasons, M. von Keller would refrain from 
voting on the report. He desired, however, to add two further remarks, 
one of which related to the question on the agenda, the other being 
more general and having regard to the future. 

In the first place, he desired to repeat once again, with regard to the 
substance of the matter, that, from the beginning of the discussion on 
the petition, the German Government, without prejudice to any ques- 
tion of procedure, had adopted the standpoint that it was bound by 
international treaties and consequently by the Geneva Convention, and 
that any measures taken by subordinate authorities which might be in- 
compatible with the Convention would be corrected. M. von Keller 
could only repeat — and he desired specially to emphasize this — that, in 
the German Government's opinion, this meant that the whole discus- 
sion served no purpose. At the same time, he was anxious that his pre- 
ceding declaration, to which he had referred, should be explicitly con- 
firmed. In the second place, he desired to point out that his colleagues 
on the Council would doubtless realize that, in adopting the Opinion of 
the Committee of Jurists, they would be accepting a principle of funda- 
mental importance to the application of the protection of minorities in 
Upper Silesia. Obviously, that principle would have to be applied to all 
petitions, against whomsoever they might be brought. In conclusion, 



(1) Document C. 366. 1933. I. 



65 



M. von Keller thanked the Rapporteur most sincerely fur his untiring 
efforts to settle the matter, 

Mr. Lester said that the statement just made by the representative 
of Germany, being somewhat more explicit on an important point, 
introduced a new factor. This new factor should, he thought, be taken 
account of in his report, and, as the representative of Germany had been 
good enough to inform him beforehand that he intended to make the 
statement, he had modified his report accordingly, and now presented 
it in the following form.* 

"I. The petition we have to consider submits to the Council the 
question whether the application of a number of laws and administra- 
tive orders in the territory of Upper Silesia is compatible with the pro- 
visions of the third part of the Geneva Convention relating to Upper 
Silesia. The laws and orders in question, to which the petition contains 
specific references, concern in particular, the status of civil servants, 
the position of lawyers, notaries and doctors, and the schools and uni- 
versities. It is a fair generalization that those laws and orders involve 
restrictions in various forms which would apply only to persons belong- 
ing to the Jewish population. One of the laws, that dealing with schools 
and universities, contains a clause to the effect that 'obligations incurred 
by Germany under international treaties are not affected by the provi- 
sions of the present law.' The petition refers, without mentioning anv 
actual cases, to the boycott of Jewish shoos, lawyers, doctors, etc. and 
the failure of the authorities and officials to protect the Jewish popu- 
uation, who, it is alleged, have thus been officially outlawed. 

"I should like to recall the fact that, when this question was placed 
on our agenda, the German Government made reservations as to the 
petitioner s right to submit this petition to the Council under Article 147 
of the Geneva Convention. 

_ "II. The mere perusal of the laws and administrative orders men- 
tioned in the petition, the texts of which are appended to it, shows that 
in so far as some at any rate of their stipulations, have been applied in 
the territory of Upper Silesia, this application cannot have taken place 
without conflicting with a number of clauses of the third part of the 
Geneva Convention. 

'TIL It should be remarked, however, that, in the statement made 
by the German representative to the Council on May 26th 1933 it is 
most plainly and categorically affirmed that internal legislation can 'in no 
case affect the fulfillment of international obligations— which I think 
may be taken to mean that the German Government is resolved to see 
that the provisions of the third part of the Geneva Convention are 
observed m Upper Silesia. Indeed, the German representative added 
that, if any infringement of the Convention had taken place, they were 
to be regarded as errors due to misconstructions of the internal laws by 
subordinate authorities and would be corrected. I propose that the 
Council take note of these declarations by the German Government 



*I Document C. 351 (I). 1933. 



66 



wliicb imply that persons who, because they belong to the minority, have 
lost their employment or found themselves unable to practise their trade 
or profession in consequence of the application of these laws, will be 
reinstated in their normal position without delay. The Council will no 
doubt share my conviction that the German Government has done and 
will do everything necessary to ensure that the provisions of the Geneva 
Convention regarding the protection of minorities shall be fully 
respected. It would, I am sure, be glad if the German Government, in 
accordance with the principle which has been followed in the past, 
and to the maintenance of which the Council attaches great importance, 
whereby the Council or the Rapporteur has been kept informed of de- 
velopments, would keep me informed in my capacity of Rapporteur of 
the decisions and measures it may think fit to take in this connection. 

"IV. It only remains for me to deal with the point concerning the 
damage that may have been sustained in consequence of the application 
of these laws and orders in Upper Silesia by persons belonging to the 
Jewish minority and, in particular, by the petitioner himself. In this 
connection, I would remind the Council that these cases may be investi- 
gated under the local procedure. I would therefore suggest that the 
Council request the German Government to arrange for the petitioner's 
case to be submitted to that procedure forthwith." 

Mr. Lester added that his colleagues would observe that what, in 
the first draft, had been an implication drawn from the first statement 
of the representative of Germany at a previous Council meeting now 
became a direct statement quoted from the remarks just made (see para- 
graph III). Mr. Lester had also taken the opportunity slightly to re- 
draft the remainder of paragraph III, but that involved no change of 
substance. He desired to reciprocate the kind remarks of the German 
representative, and he only regretted that they had been unable to agree 
on the report. 

M. Biancheri pointed out that the German delegation had stated 
in the Council on two occasions that internal legislation could in no case 
affect the fulfillment of international conventions concluded by the 
Reich, and that, if any infringements of the Geneva Convention had 
taken place in German Upper Silesia, they were to be regarded as errors 
due to misconstruction of the internal laws by subordinate authorities. 
The Italian delegation noted that formal declaration, which settled the 
case in question; as, however, certain general considerations which 
perhaps exceeded the Council's competence had been put forward, the 
Italian delegation felt it should abstain from approving the report. 

Count Raczynski said that the members of the Council would cer- 
tainly remember the Opinion recently given by the Committee of three 
jurists with regard to a previous question raised by the Polish Govern- 
ment in connection with certain petitions relating to Polish Upper Si- 
lesia. The Committee of Jurists, while adopting the same view as the 
Polish Government from the practical standpoint, had however given a 
very wide interpretation to Article 147 of the Geneva Convention for 
purely legal reasons. As he had been unable to accept all the legal con- 



67 



siderations submitted by the Committee, the Polish representative had 
been obliged to refrain from voting for the adoption of the Opinion. 
He quite realized that, having been requested once again to interpret 
Article 147, the Committee had felt bound to repeat some of the con- 
sideration in its previous Opinion. It would also be understood that 
Count Raczynski maintained his general reservations with regard to 
that Opinion. At the same time, he agreed to the conclusions of the 
Committee of Jurists which were relevant to the present case. He took 
the opportunity once again to pay a tribute to the conscientious work of 
the three eminent jurists. 

IVL Massigli, referring to M. Paul-Boncour's statement in the 
Council a week previously, accepted the report on behalf of the French 
Government. Public opinion, which saw only the main lines of a prob- 
lem and sometimes did not greatly concern itself with the juridicial 
limits of the Council's powers, would probably not consider that the 
regional settlement now proposed was of a nature to allay the uneasi- 
ness to which the French representative had drawn attention a week 
previously. But the Council was obliged first to consider the question 
from the standpoint of formal law. As the matter had been referred 
to it under the 1922 Convention, it was the Council's duty to see that in 
German Upper Silesia at least — since only in that region was it able, 
under the Convention, to deal with the application of the general legis- 
lation of Germany — legislative provisions, the letter and spirit of which 
were contrary to the provisions of the minorities treaties, should no 
longer be put into force and that any persons who had been affected by 
those provisions should have their former position and rights restored 
to them. If M. Massigli had rightly understood the German represen- 
tative's statement and the comments of the Rapporteur, the Government 
of the Reich concurred in these two important points of the report. M. 
Massigli added that the Rapporteur would certainly wish to satisfy him- 
self that all the necessary measures would be taken to give effect to these 
decisions. He thanked him in advance for that, as for the efforts he had 
made in the matter and for the results he had achieved. 

M. Madariaga wished to say that the Government of his country 
considered that the Council was fully competent to deal with the matter. 
He was also in complete agreement with the Committee of Jurists, and 
accepted the report of the representative of the Irish Free State. He 
would like to observe that Spain's attitude on that question had been 
dictated solely by her great respect and deep friendship for the German 
nation, and by her anxiety that the Members of the Council should 
always set the example of strictly fulfilling international obligations. 
As trustees of that right, they must be careful never to do anything in 
their general policy that might in any way weaken their authority. He 
also wished to say with what deep gratitude and great confidence the 
members of the Council had heard the statements of M. von Keller, 
which enabled them to preserve the confidence they had always reposed 
in the wisdom of the German people, especially in recent times. 

M. Osusky said that he could justify on several grounds the free- 
dom with which he wished to speak on the subject of the Bernheim 

68 



petition. In the fust place, he represented a country that was subject 
to the regime of the protection of minorities, and was as such, interested 
in the same degree as the representative of Germany — at all events, so 
far as Upper Silesia was concerned — in ensuring that the regime of the 
protection of minorities was not used, 'for unconf essed political aims, 
as a lever to create disorder and indiscipline and even to bring about 
the dislocation of the organized national community. Secondly, he 
thought he might say that Czechoslovakia had already shown that she 
intended to live up to her obligations, and even, in the sphere of the 
protection of minorities, to go beyond them. If after fourteen years of 
loyal co-operation with the Council in the matter of minorities, the 
Council still needed any proof that Czechoslovakia had kept her word, 
it had only to listen to the voices of the Czechoslovak minorities, which, 
through their leaders and their press, publicly proclaimed that the de- 
mocracy of Czechoslovakia was their democracy, and that the freedom 
of the Republic was likewise their freedom. He would not deny that, 
from time to time, the Council had heard discordant voices on the sub- 
ject of his country in regard to minorities. But the few complaints 
that had been heard — the forced tone of which too visibly betrayed, not 
so much an anxiety for justice, as regret that matters were being too 
quickly settled within the country— those few complaints were in them- 
selves the most conclusive testimony to the fairness of Czechoslovakia's 
treatment of her minorities. Those who were accustomed to adminis- 
tration and government knew perfectly well that complaints freely, or 
even sometimes violently, formulated were the expression of the free- 
dom to which the minorities were entitled. 

In the matter of minorities, it was silence that was most disquieting 
from the point of view of justice. Complaints were often no more than 
an expression of disappointment that things were going too well, and, 
in other cases, they only expressed apprehension lest justice might be 
threatened or offended ; but, where minorities were concerned, silence 
was almost always a sign that justice had been stifled and killed. Yet 
there was no procedure by which the martyrs of silence could reach the 
Council. He had often thought that perhaps the lack of any such pro- 
cedure placed a premium on violence. He had other qualifications to 
speak about the Bernheim case. Bohemia had given asylum and the 
rights of citizenship to Jews from the remotest historical times. There 
were still to be seen in Prague two survivals of the ancient separate 
city in which the Jews lived — the synagogue and the cemetery, which 
was the oldest Jewish cemetery in Europe. The old synagogue had 
been built in the thirteenth century, but the cemetery dated from the 
tenth. It was still there as a proof that, even in the earliest times, 
Bohemia had respected both the rights of the living and the rights of 
the dead. During the great crusades, hosts of crusaders from the west 
had passed through Prague, where they had attacked, robbed, mal- 
treated and forcibly baptized the Jews. As the local population had 
developed a taste for this expression of western civilization, King 
Premysl Otokar of Bohemia had decided to put a stop to it, and had 
taken the Jews under his protection in 1254. Among the liberties they 
had enjoyed in Bohemia was the possession of a Jewish civil court. 

69 



Apart Eromthai Jewishaspect of the question, the represenfative of 
Germany knew better than anyone else that from the thirteenth to the 
seventeenth century Bohemia had fought for freedom of conscience. In 
consequence, and as a reward, she had for several centuries disappeared 
from the map of Europe, and he though that Czechoslovaks had thus 
well earned the right to remain, while offending nobody, the trustees of 
the moral conscience of ancient Bohemia, especially as their fidelity -to 
that memory had brought about the resurrection of the nation. Czecho- 
slovakia knew that justice was eternal, and she was herself a living testi- 
mony to the fact ; but she also knew that the human beings who were 
entitled to enjoy and benefit by justice were not eternal. That was why 
they wished to move more quickly than justice, and that was why he 
felt entitled to say a few words on certain questions raised by the Bern- 
heim petition. The discussion in progress had revealed some general 
aspects of the problem which were at least as interesting and important 
as the actual case itself. The case, and more especially the discussion, 
recalled the great debates that had taken place in the League Assem- 
blies on minorities and their protection. It would be remembered that 
the debate oscillated between two theses— namely, that the partial solu- 
tion of the protection of minorities should be maintained and per- 
petuated, and should be applied only to certain selected States or certain 
specified areas, and on the other hand, that the existing discrimination 
between states should be abolished, just as the minority treaties had 
abolished the discrimination between the nationals of a country subject 
to the protection of minorities. 

The discussion in which the Council was engaged was a proof that, 
notwithstanding all the arguments that were advanced in favour of 
maintaining a partial solution of the problem in a democratic commu- 
nity of nations like the League, the principle of equality was becoming 
more and more insistent every day. At the same time, it was necessary 
to be clear as to what was meant by equality. The principle of equality 
did not derive its force from any national sentiment of prestige, still less 
from the democratic leveling that was so much decried. It drew its 
vitality and its dynamic force from the fact that it implied not a down- 
ward but an upward levelling. In other words, it meant not equality in 
evil and injustice, but equality in good and justice. However well de- 
signed and organized, no discrimination could easily hold its ground 
against justice. The most elementary justice addressed an irresistible 
appeal to conscience. That, however, was not a matter for complaint. 
It might be annoying, inconvenient, disquieting and sometimes even 
intolerable, but it was none the less the most glorious achievement of 
civilization. The case under consideration would therefore necessarily 
afford the next Assembly a further opportunity of examing the problem 
in all its aspects. He would like to say then and there that justice, as 
his country understood it and practised it in connection with minorities, 
was not and could not be safeguarded from all risks and dangers so 
long as it was not conceived and executed on the universal plan. There- 
fore, when the time Came, it would be natural, on that question, for 
Czechoslovakia to pronounce in favour of justice one and indivisible, 

70 









the only means of Cementing the moral unity Of mankind which alone 
could protect and. defend the fruits of civilization and peace ilseli. 

Mr. Eden said that, having on the last occasion when the matter was 
before the Council expressed acceptance of the report, on behalf of I lis 
Majesty's Government in the United Kingdom, he need only add a very 
few observations. He would, however, like to express his gratification 
at the progress which had been made in the solution of what was un- 
doubtedly a difficult and delicate problem, and to express the hope that 
the progress that had been registered would be continued until all the 
difficulties in connection with the matter were finally regulated. I le 
felt sure that the present solution was one which the Council could re- 
gard as satisfactory, and he knew that all his colleagues would join with 
the German representative in expressing their obligation to the Rap- 
porteur for the outcome of the earnest endeavours which he had had 
so frequently to make of late, and in which he had always been suc- 
cessful. 

M. Lange observed that he had said at the previous meeting that he 
would have accepted, on his Government's behalf, the report that had 
been submitted. Needless to say, he would vote the more heartily in 
favour of the report after the statement that the representative of 
Germany had made that morning. He would like to add his own con- 
gratulations to the Council on the progress that had been made, and he 
hoped that still greater advances would be achieved in the ■future. In 
that connection, he would refer to a sentence in the statement made by 
the representative of Germany at the previous meeting, to the effect that 
if any infringements of the Upper Silesia Convention had taken place, 
they must be regarded as errors due to misconstructions of the internal 
laws by subordinate authorities. Everyone knew, of course, that to err 
was human. Mistakes inevitably occurred in the application of laws, 
and even of international engagements. At the same time, he would 
like to point out that that was a phrase that had been seen before in 
documents relating to the application of minority treaties. He would 
not like to say that there was a risk of its becoming a classic phrase in 
such documents ; but, in any case, he had come across it so often that he 
could not refrain from observing that it would be much better if all the 
States, without exception, which were bound by these solemn under- 
takings in the matter of minorities, would take the most energetic steps 
to ensure that the attention of all subordinate officials in minority dis- 
tricts and towns was specially drawn to these solemn international 
undertakings. M. Lange was in favour of adopting the report; he 
agreed with what had been said by previous speakers, and expressed to 
the Rapporteur his high appreciation of his work and the gratitude of 
all the Members of the Council. 

M. von Keller first of all replied to the Norwegian representative, 
who had referred to a familiar phrase to the effect that mistakes had 
been made by subordinate authorities. The German Government had 
twice made a very definite and frank declaration, and its word could not 
be doubted. If it had stated that on one occasion there had been a 
mistake, this must not be regarded as a habit, nor could doubt be cast on 

71 



its statements. Passing to the Czechoslovak representative's speech, 

M. von Keller said that, after the remarks he had made at the previous 
meeting, he had not expected that the Czechoslovak representative 
would fail to observe the limits laid down by the agenda. The unex- 
pected turn taken by the discussion therefore obliged M. von Keller to 
speak again. But this reply would be as brief as the Czechoslovak rep- 
resentative's interesting and detailed speech had been long. He would 
confine himself to saying that all that M. Osusky had said greatly ex- 
ceeded the bounds of the matter which was before the Council. 

M. Osusky replied that it was intentionally that he had refrained 
from speaking of the concrete case of M. Bernheim. It was intention- 
ally that he had tried to draw a lesson from the case. He did not think 
that that was forbidden by the Council's agenda of that morning. All 
that he had desired— perhaps in rather too long a speech—had been to 
repeat or develop an idea which he had expressed a week previously 
before the Council — namely, that the present discussion and that of a 
week ago constituted a complete demonstration that it was never un- 
necessary or premature to organize the defence of justice. 

M. Lange had not wished to cast the slightest doubt on Germany's 
intentions or goodwill as regards the observance of her international 
obligations. Nothing had been further from his mind. He regretted 
that he had expressed himself in a way that could be so interpreted. He 
had simply wished to say that breaches of obligations might be pre- 
vented by giving instructions to subordinates well in advance, in order 
that the Council should not have to deal with complaints like that which 
it was now examining. M. Lange had expressed the fear that the fa- 
miliar phrase in question would become only too common, because he 
had found it in documents emanating from Governments other than the 
German Government. 

The Conclusions of the Report were adopted, the German and Italian 
representatives abstaining. 

The President expressed the hope that the report and the Opinion 
of the Committee of Jurists might serve to bring about a solution of the 
entire question. 

Mr. Lester said that now that the report had been adopted by the 
Council, and the Council had left him with certain duties to fulfill in 
connection with it, he would like to express his firm conviction that the 
Council would not again be called upon to consider the question in any 
form as, in common with his colleagues, he had not had the slightest 
doubt that the German Government was determined to carry out its 
international obligations. 



This case resulted in very important determinations. One was that 
any member of a religious or racial minority of Upper Silesia was entitled, 
under such treaties, to bring the infraction of the rights of the entire 
minority before the Council of the League for determination, and not 
merely his own personal grievance, nor those of his particular occupation, 

72 



, 



Imt the "general question" itself. Moreover, birth in Upper Silesia was 
not necessary, nor actual physical presence there when the petition was 

filed, it is also significant that even Germany expressly conceded that 
"the internal German legislation could not in any way affect international 
conventions concluded by the Reich." 

Moreover, Germany's own claim that the Council should permit her (o 
correct the alleged infractions without international action, which she 
claimed had occurred in Upper Silesia by errors due to misconstruction by 
subordinate authorities, was overruled. The determination of the Council 
in this particular instance acquires added weight by reason of the fact 
that a Committee of three distinguished jurists reported on certain legal 
phases of it, and their report is spread in full on the official minutes. This 
Committee consisted of Prof. Max Huber, ex-President of the World 
Court, M. Bourquin and M. Pedroso. This Committee of jurists suc- 
cinctly declared that 

"Monsieur Bernheim, being of non-Aryan origin, belongs to one of 
these minorities," within the meaning of the Treaty. They added that 
"the intention was that all nationals of the State should be equal before 
the law, and that that equality should exist both in law and in fact." 

The emphasis laid by several of the delegates to the Council on the pledges 
Germany gave to the United States and the other allies at the Peace Con- 
ference as to the treatment she was to accord to her minorities, is also 
striking. Several delegates also emphasized the point that Germany's 
general course not merely violated fundamental principles of justice, but 
also established principles of international law. 






73 



APPENDIX I. 

TO THE PRESIDENT AND THE MEMBERS OF THE COUNCIL 
OF THE LEAGUE OF NATIONS 

Petition of FRANZ BERNHEIM, resident of German origin of 
Gleiwitz in German Upper Silesia based on Article 147 of the 
German-Polish Convention regarding Upper Silesia, of May 15th, 
1922, and referring to provisions of Part III of the said Conven- 
tion. 



In the convention of May \5th } 1922, between Germany and Poland 
concerning Upper Silesia the contracting parties agreed upon the follow- 
ing provisions : 

Article 66 — The German Government undertakes to assure full and 
complete protection of life and liberty to all inhabitants of Germany with- 
out distinction of birth, nationality, language, race, or religion. 

Article 67 — Paragraph 1 — All German nationals shall be equal before 
the law and enjoy the same civic and political rights without distinction of 
race, language or religion. 

Article 75 — Paragraph 2 — Legislative and administrative provisions 
may not establish any differential treatment of nationals belonging to a 
minority. Similarly they may not be interpreted nor applied in a discrim- 
inatory manner to the detriment of such persons. 

Paragraph 3 — Nationals belonging to minorities shall in actual prac- 
tice receive from the authorities and officials the same treatment and the 
same guarantees as other nationals. In particular, the authorities and of- 
ficials may not treat nationals belonging to minorities with contempt, nor 
omit to protect them against punishable acts. 

Article 80— Nationals belonging to minorities shall be treated on the 
same footing as other nationals with regard to the exercise of an agricul- 
tural, commercial or industrial calling or any other calling, they shall be 
subject only to provisions in force as applied to other nationals. 

Article 83 — The high contracting parties undertake to assure full and 
complete protection of life and liberty to all inhabitants of a plebiscite ter- 
ritory without distinction of birth, nationality, language, race or religion. 

II. 

1. In the Reich Legal Gazette, Part 1, issued in Berlin April 7th, 
1933, No. 34, a law "for the reorganisation of the civil service'' was pro- 
mulgated by the government of the German Reich. 

Section 3, Paragraph 1, of the law says, "Officials who are of non- 
Aryan descent are to be placed in retirement; in the case of honorary of- 
ficials, they shall be discharged from official position." 

74 



Section 8 provides thai in regard to these officials placed in relireiuciil 
or dismissed in accordance with Section 3, they shall not receive a pension 
unless they have completed at least ten years service. Section 9 contains 
further discriminatory proz'isions in regard to officials placed in retire 
ment in accordance with Section 3. 

2. The German Government, in the Reich Legal Gazette, fart I, 
issued in Berlin April \0th, 1933, No. 36, promulgated a lazv on "ad mis- 
sion to the legal profession," dated April 7th, 1933. 

Section 1 of this law says : "The admission of lawyers who within the 
meaning of the law on reorganization of the civil service, April 7th, 1933, 
are of non-Aryan descent can be cancelled up to September 30th, 1933. 

Section 2 says : "Admission to legal practice can be refused to persons 
who within the meaning of the law on reorganization of the civil service, 
April 7th, 1933, are of non-Aryan descent, even if the reasons provided 
for in this connection by the regulation of the legal profession do not 
exist." 

Section 4 says : "The judicial administration can forbid a lawyer to act 
as counsel pending decision whether use shall be made of the faculty of 
zvithdrawing permission." 

3. In a decree of April 1, 1933, regarding the exercise of the calling of 
notary, was the following : 

"Maintenance of public order and security will be exposed to serious 
danger if Germans are still liable to be served zmth documents in legal 
proceedings which have been drawn up or certified by lewish notaries. 
I accordingly ask that Jewish notaries be urgently advised in their own 
interests to refrain until further notice from exercising their calling. 

"In this connection the attention of notaries should be drawn to the 
fact that, should they refuse to comply with this recommendation, they 
will expose themselves to serious dangers in view of the excited state of 
public opinion. Notaries should be recommended to inform the com- 
petent presidents of provincial courts that they will refrain from exer- 
cising their calling pending the issue of further regulations regarding 
conditions applying to notaries. 

Signed— KERR, 

"Reich Commissioner, Prussian Ministry of Justice. 

4. The government of the German Reich promulgated April 25th, 
1933, a law "against the alienization of the German schools and high 
schools," which says, Section 4 : 

"In making neiu admissions, care should be taken that the number 
of German nationals who, within the meaning of the law on reorgani- 
zation of the civil service, April 7th, 1933, are of non-Aryan descent, 
does not exceed, among the total number of pupils attending each school 
and the faculty, the proportion of non-Aryans to the total German popu- 
lation. This proportion shall be uniformly fixed for the whole of Ger- 
many at 1.5 per cent. 

"In reducing the number of pupils and students in accordance zvith 
Section III because of the overcrowding of the professions, the proper 



75 



proportion- should also be observed between the total number of pupils 
and the number of non-Aryans." 
'Hie Ministry of the Interior has issued regulations to give effect to 
this law, of which Number II reads : 

"Pupils of non-Aryan descent ivho have newly entered or enter 
school at the beginning of the academic year 1933, Easter, 1933, shall 
in all cases be regarded as not yet admitted." 

5. The Minister of Labor of the German Reich has promulgated a 
decree "on admission of doctors to the panels of health insurance funds," 
of which Article I stipulates : 

"Doctors of non-Aryan descent on panels of insurance funds shall 
no longer be allowed to practice. New entries of such doctors on the 
panels of insurance funds shall not be allowed." 
Four regulations for the admission of health insurance doctors, dated 
December 30th, 1931, are amended as follows by this decree : 

"Registration is only permissible when the doctor is a German na- 
tional and of Aryan descent." 
All these laws and decrees were promulgated for the whole territory of 
the German Reich; therefore they also apply to that part of Upper Silesia 
which remained German as a consequence of the decision of the Confer- 
ence of Ambassadors and is subject to the provisions of the Convention of 
May 15th, 1922. 

Only in the law against the alienisation of German schools and high 
schools is there a provision, in Section V, which says the obligations in- 
curred by Germany under international treaties are not affected by the 
provisions of the present lazv. If this means that the law in question does 
not apply to Upper Silesia, it must be remarked that in practice it has been 
applied there in exactly the same way and Jewish pupils have been re- 
fused admission or have been turned out of schools in exactly the same 
way as in the rest of Germany. 

III. 

The laws and decrees quoted above are in contradiction with the pro- 
visions of Part III of this convention also reproduced above; 

The principle laid down in Article LXVII and LXXV of equality of 
all German nationals before the law and as regards civil and political 
rights; 

The principle laid dozvn in Article LXXX of obligation to treat all 
nationals on the same footing in regard to the exercise of their callings; 

And they constitute infringement of the obligation laid dozvn in 
Article LXVI, LXXXIJI and LXXXV to provide undis criminating , 
comprehensive protection of the lives and liberty of all inhabitants and 
nationals of Germany. 

This is particularly the case when the Minister of Justice forces 
Jezvish notaries to cease their activities, which they are entitled to exercise 
by law, under threat that othcrzvise he will be unable to protect them 
from the violence of the populace and thus makes an illegal demand on 

76 



I 



them involving punishable arts, instead of hiking steps to deal with these 
punishable acts according to lazv. 

These laws were partly put in force before their promulgation, as. 
for example, in the case of the exclusion of notaries, while as regards 
State officials the lazv on reorganisation of the civil service was applied 
by Reich and State authorities before it came into effect and even before 
its promulgation. 

In Prussia, Jezvish barristers were precluded from representing 
clients in courts, zvith very few exceptions, even before this law zvas 
promulgated, and this exclusion zvas expressly sanctioned by represen- 
tatives of the Ministry of Justice. 

Jewish pupils who had already been attending higher schools zvcre in 
many cases removed from the schools by those in charge, zvith the help 
of other pupils, before the promulgation of the lazv. 

IV. 

On April 1, 1933, a public boycott of Jezvish business, lawyers,, doc- 
tors, etc., zvas ordered and organised by an office under the authority of 
the German Chancellor and they zvere treated with public contempt as 
part of this measure. 

This boycott zvas carried out by storm troops and picked formations, 
also under orders of the German Chancellor as supreme leader, and the 
public authorities failed to prozddc the Jezvish subjects of Germany zvith 
the protection to Which they zvere entitled by law. 

As far as Upper Silesia zms concerned this action constituted an in- 
fringement particularly of the provisions of Division II, above all of the 
Articles LXXV and LXXXIII. 

Since then German nationals or inhabitants of the plebiscite territory 
zvho belonged to the minority have been treated in a discriminatory man- 
ner by the authorities and officials, zvho have failed to take the necessary 
steps for their protection against punishable acts. 

There are many more legal and administrative measures and decrees 
which carry out this tendency that now predominates throughout the 
legislation of the German Reich. 

V. 

The present petition confines itself to drawing attention to the fore- 
going and bases itself on the laws, decrees and administrative measures 
quoted above. 

It draws attention to the fact that the German Reich undertook in 
Article LXXXV that the stipidations contained in Aricle LXVI to 
LXVII should be recognised as fundamental lazvs and no law, regida- 
tion or official action should conflict or interfere with these stipidations 
nor should any lazv, regulation or official action prevail over them. 

Whereas under Article LXXII Germany has agreed that the stipu- 
lations in the foregoing articles, in so far as they affect persons belonging 
to racial, religious and linguistic minorities, constitute obligations of inter- 

77 



national concern and shall be placed under the guarantee of the League of 
Nations and shall not be modified without the assent of a majority of the 
Council of the League of Nations; 

WHEREAS, Germany has agreed that any member of the Council 
of the League of Nations shall have the right to bring to the attention of 
the Council any infraction or any danger of infraction of any of these 
obligations, and the Council may thereupon take such action and give such 
direction as it may deem proper and effective in the circumstances : 

The undersigned, Franz Bernheim, born Sept. 15, 1899, in Salsburg, 
Austria, a citizen of Wurttemberg and a German national of Jewish, 
hence non- Aryan descent; previously residing in Gleizmtz, S chiller strasse 
66, German Upper Silesia; at present temporarily staying in Prague, 
Czechoslovakia; employed from Sept. 30th, 1931, to April 30th, 1933, by 
the Deutches Familien Kaufhaus, Ltd., Gleiwitz branch, and then dis- 
charged for the reason that all Jewish employees had to be dismissed; 
passport No. 180/128/30, issued by the Berlin Charlottenburg police of- 
fice, Feb. 2Sth, 1930, and thus legitimatized under Article CXLVII as a 
member of the minority in accordance with Part 3 of the Geneva Con- 
vention of May 15th, 1922. 

Hereby submits this petition to the Council of the League of Nations, 
signed with his own hand, requesting the Council to take such action and 
give such directions as it may deem proper in order to declare null and 
void for Upper Silesia the laws, decrees and administrative measures in 
contradiction to the aforementioned fundamental principles and insure 
that they shall have no validity, and further, to give instructions that the 
situation guaranteed by the convention shall be restored and that Jews 
injured by these measures shall be reinstated in their rights and shall be 
given compensation. 



VI. 

The undersigned, Franz Bernheim. further requests the Secretary of 
the League of Nations to treat this petition as urgent. 

The reason for this request is that, as the above-quoted laws and de- 
crees demonstrate, the application of the principle of inequality to German 
nationals of non-Aryan and Jewish descent is being systematically pur- 
sued in all spheres of private and public life, so that already an enormous 
number of Jewish lives have been ruined, and if the tendencies at present 
prevailing in Germany continue to hold sway in a very short time every 
J&W in Germany will have suffered permanent injury so that any restora- 
tion or reparation will become impossible, and thousands and tens of 
thousands will have completely lost their livelihood. 



This signature legalized by 
Viktor Ludwig, Notary. 
Prague, May 12, 1933. 



(Signed) FRANZ BERNHEIM, 

Prague, May 12, 1933. 



78 



APPENDIX [I. 

U. S. SENATE RESOLUTION 154 INTRODUCED BY 
SENATOR TYDINGS, JANUARY 24, 1934 

WHEREAS the present Government of the German Reich has de- 
prived certain groups of its citizens of many of their civil and politics] 
rights and has imposed upon them restrictions, pains, and penalties, harsh 
and severe in nature ; and 

WHEREAS among the groups so discriminated against by said ( lov 
ernment are approximately six hundred thousand Jewish citizens of the 
Reich, and the great number of Christians of partly or wholly Jewish 
descent ; and 

WHEREAS it is manifest that, as regards the Jewish citizens of the 
Reich and such Christians of Jewish descent, the actual causes for the 
discriminations against them are their religious beliefs or professions, and 
their racial origin, neither of which is a ground reasonably affecting their 
rights and privileges as citizens of a modern state ; and 

WHEREAS, on many historic occasions, beginning in the year 1810 
and continuing down to the year 1919, intercessions have been made by 
the United States on behalf of citizens of states other than the United 
States, oppressed or persecuted by their own -governments or peoples, 
including nine separate occasions on behalf of Jews in foreign states, 
indicating that for nearly one hundred years the traditional policy of the 
United States has been to take cognizance of such invasions of human 
rights ; and 

WHEREAS the German Reich stands pledged to the United States to 
accord to its "nationals who belong to racial, religious or linguistic, min- 
orities" * * * "the same treatment and security in law and in fact 
as the other nationals" ; 

NOW THEREFORE, be it 

RESOLVED, That the Senate of the United States express its pro 
found feelings of surprise and pain, as representatives of the people of 
the United States, upon learning of the discriminations and oppression 
imposed by the Reich upon its minority groups, including its Jewish citi- 
zens ; and be it further 

RESOLVED, That the Senate of the United States express its 
earnest hope that the German Reich will speedily alter its policy, restore 
to its minority groups the civil and political rights of which they have 
been recently deprived, and undo, so far as may be, the wrongs that have 
been done them. 



79 




ELECTRIC BUILDING 
C I N CI N N ATI, O. 



©meets 

ALFRED M. COHEN, President 

Cincinnati 
LUCIUS L. SOLOMONS, 1st Vice-Pres. 

San Francisco 
ARCHIBALD A. MARX, 2nd Vice-Pres. 

New Orleans 
JACOB SINGER, Treasurer 

Philadelphia 
DR. I. M. RUBINOW, Secretary 

Cincinnati 

Executive Committee 

OFFICERS AS ABOVE 
LOUIS FABRICANT 

New York City 
SIDNEY G. KUSWORM 

Dayton 
HENRY A. ALEXANDER 

Atlanta 
HENRY MONSKY 

Omaha 
DR. LEO BAECK 

Berlin, Germany 
DR. J. NIEMIROWER 

Bucharest, Roumania 

DR. JOSEF POPPER 

Prague, Czecho-Slovakia 

J. NIEGO 

Constantinople, Turkey 

DR. LUDWIG BRAUN 

Vienna, Austria 
DR. LEON ADER 

Krakau, Poland 
DR. DAVID YELLIN 

Jerusalem, Palestine 
M. GORDON LIVERMAN 

London, England 
and 
PRESIDENTS OF ALL 
AMERICAN DISTRICTS 



February 28, 1934. 



The Members of the American Historical 

Society and American Political Science 

Association 

Dear Sir; 

We take the liberty to enclose herewith, with 
the compliments of the B'nai B'rith, a pamphlet by 
Max J. Kohler, M.A. , L.I.B., D.H.L., one of the 
greatest students of international law in this 
country, entitled "The United States and German 
Jewish Persecutions - Precedents for Popular and 
Governmental Action". The pamphlet presents a very 
thorough study of precedents in American History 
for intervention by the United States government on 
behalf of persecuted religious and national groups 
in other countries. We believe that the material 
contained in this pamphlet will be of great value 
to yourself and to your classes in teaching 
American political history. 



Sincerely yours, 



Qj^wd 9ft. &oLm, 

President 

Si. 9ft. HuMnom 

Secretary